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CALOWELL 



FRANK, WARHEMTON. 



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XLable of Contents. 

part jfitst. 

DURING THE WAR. 

A Ruse which deterred Butler, with liis Army of 
Thirty Thousand Men, from occupying Petersburg 
and saving Riclimond from attack, in an unguard- 
ed point ; with equal success a similar stratagem 
is employed at "High Bridge." Letter from Doctor 
W. \V. H. Thackston, the Aid de Camp Page 3 

Letter from General William L. Cabell, stating the 
promotion of Colonel Scott to the i*ank of Colonel 
in Trans-Mississippi and containing a recital of 
his own campaign and battles, in Arkansas and 
Missouri, with his capture by the Federals in the 
open prairie Page 11 

First Battle of Manassas, vivid and picturesque dis- 
cription by W. F. R; a cavalry pursuit, capture of 
the enemy's artillery, and a reproduction of the 
Report to Brigadier General Holmes. oNfajor Ma- 
son Gordon's interesting Letter Page 13 

A double skirmish at Markham, with the charge of 
Stuart's Regiment of Eight men. Stuart's bold 
and successful opei*ations which enabled General 
Lee to interpose his Army for the protection of the 
Confederate Capital Page 30 

part SeconO. 

after the war. 
The Coupon Controversy with the British Creditors, 
and the State's vital interest in the Result; the 
Tax-receivable Coupon and "The Coupon Crusher" ; 
Litigation in the Federal Courts, the Attorney 
General and two of the Commwealth's Attorneys 
being the defendants ; Colonel Scott's Answer to 
the Rule to Show Cause given, and its two grounds 
noted in connection with his Article in The Vir- 
ginia Law Register, in farther explanation and 
development of the argument; Testimonials to 
the litigant officers from the State of Virginia. .Page 34 







a IRuse of Mar, B Brilliant lExploit. 

The followiug article was published in the Phila. Weekly 
Times, one of the most broad-minded journals of the country, 
soon after the war, and was afterwards incorporated in "The 
Aunals of the War by the principal participants North and 
South." W*^ omit notes verifying statements made, because the 
body of this article takes more space than we can afford in jus- 
tice to readers in quest of current topics and local news. We 
take pride in copying the article because a chief actor is a Fau- 
(|uier man now a last year's leaf, as it were, bronzing the 
foliage of Spring. When Col. Scott returned from his expedition 
to Butler's camp, a citizen of Petersburg the "Cockade Town of 
Va," said to him : "If that service had been performed in the 
Northern Army they would have made 3'ou a Brigadier Gener- 
al." To which Col. Scott modestly replied: "Such things are 
([uite too common with us to receive or to merit attention." — 

Trip- Index. 

When General Butler, in the spring of 1864, landed at City 
Point and Bermuda Hundreds with an army of thirty thousand 
men accompanied and guarded by a fleet of iron clads and gun- 
boats, why he did not at once occupy Petersburg then without a 



DURING THE WAR. 



garrison to possess which afterwards cost so much blood to the 
invading army, is a question the answer to wliicli is not obvious. 
Petersburg lay on the line of railway leading south from Rich- 
mond, distant 22 miles. It was twelve miles from City Point, sit- 
uated at the junction of Appomattox and James rivers,and which 
was connected with Petersburg by a railroad, a navigable river, 
and a broad liigh-way running through a level country, not oc- 
cupied by hostile forces. Col, John Scott of P^iuquier was the 
oflHcer employed by Gen. Pickett in the production of causes 
which resulted in the preservati(;n of Petersburg from capture, 
and an account of his action is necessary to answer the question 
stated above. It will display some of the hazards and possibili- 
ties of war, on which often turn important events, and will af- 
ford a modicum of information to the historian of the future 
who would gather up all the facts to enable him, with an impar- 
tial pen, to rehite the story of the great war of the American 
Sections, the product of an unnatural Union and a prostituted 
Constitution. Moreover it will do justice, in a very trying, 
emergency, to the conduct and valor of M':ijor General George 
E. Pickett, a West Point cadet and an able commander in the re- 
nownedArmy of NortliernVirginia, whose reputation is very dear 
to the South. To render this incident intelligible to one not in- 
formed of the military facts to which it refers, and out of which 
it grew, it will be necessary to state the situation in the Depart- 
ment of North Carolina, in which Petersburg was included, or 
so much of it as affected that point. Though General Pickett 
had been relieved of the command of the Department he was 
still in Petersburg when Butler dropped, as it were from the 
clouds, on City Point. The troops for the defence of Petersbui'g 
had been transferred to North Carolina, excepting a single regi- 
ment of Clingman's brigade of Infantry', numbering about six 
hundred men; nor had any part arrived of the soldiers o'' Beau- 
regard, who had succeeded Pickett in the eonunand. Thus vhe 
defences of Petersburg, constructed with cost and skill, were 



DURING Tin-: WAK. 



left open to occupation by the Federal commander. Why so im- 
portant a point was left unguarded, even for a day, has never 
been explained to the public. Col. W.ilter Harrison, the biogra- 
pher of Pickett's men, states that, as early as the preceding No- 
vember, Pickett had penetrated the enemy's design to make 
by James river, an expedition against Petersburg and had held 
a conference witli the Confederate autliorities in relation to it. 
He had even carried his representations to Gen. Lee and had 
been referred to Beauregard, witii whom he liad consulted atWel- 
don. Ccl. Harrison continues: "But the expedition at this 
time was put on foot, much valuable time was wasted and the 
troops, which at once should have been ordered to Petersburg, 
were kept in North Carolina, doing little or nothing,while Pick- 
ett, in Petersburg, was left withmm-ely a handful of men." He 
then adds: "Beauregard was in no way responsible for this. 
He had no control of the troops, and, I have understood, strong- 
ly urged their being hastened to Petersburg to support Pickett." 
But the danger from the lower James was appreciated not alone 
by Gen. Pickett. A gentleman of the city, not connected with 
the army, a short time before the descent on City Point, had 
pointed out to Col. Seott,on one of the military maps of the day, 
its exposed condition from the river, and predicted that Ber- 
muda Hundreds would be the point which the enemy next 
svould strike. A short time before the occurrence of the events 
about to be related, Colonel .John Scott, but recently returned 
from Trans-Mississippi, where he had been promoted to the rank 
of Colonel, had reported to Gen. Pickett for duty. At the time of 
his arrival Petersburg was vacant of soldiers, everything was in 
repose, and he occupied the leisure by inspectinsr the fortifica- 
tions, and in other ways that pleased him. At an early hour 
while he was engaged with Schiller's "Thirty Years War," an 
otRcer of the staff summoned him to report without delay to Gen. 
Pickett. He found everything astir at Head Quarters, and was 
informed by Gen. Pickett that Butler had occupied City Point, 



6 DURING THE WAR. 



and that, as he was the only cavalry otTicer on the ground, he 
must take a command of cavalry, to reconnoitre the enemy's 
position, to remain close to his outposts, and, if possible, to in- 
duce the belief that an attacking force was at hand; but that 
he had no troops, and that Petersburg must fall into his hands, 
unless Butler could be entertained with this false opinion until 
Beauregard could arriv^e from the South. The General was ask- 
ed where the command of cavalry was to be found? He respond- 
ed that he had no cavalry, but would exert himself to get to- 
gether a band of mounted citizens, and with these the duty 
must be performed. With characteristic energy the General 
set about to get together such a body as he desired, and, in so 
chivalrous a community, it was not long before Col. Scott found 
himself at the head of thirty horsemen armed with such weap- 
ons as each man could provide. It proved a difficult thing, on 
the spur of the occasion, for the commander of the party to pro- 
cure a suitable horse for his own use, but one finally was obtained 
a sup\rb animal, in the highest keep, recently bought from a 
James river planter, and named Planter, but for which a price 
was agreed to be paid large even in the depreciated currency of 
the Confederate States. A cavalry man, a very gallant soldier, 
at home on furlough, was the only enlisted man whojoined the 
expedition and was the only one killed on that tour of duty. As 
the mounted party passed outside the City on the road leading 
to City Point, the regiment of North Carolina infantiy wasseen 
camped on the right, as if thrown forward to opposo Butler's 
army, and what guns there were were mounted on the fortifica- 
tions on that side. It was evident that the intrepid Pickett was 
not dismayed at the storin-cloud svhich lowered over Peters- 
burg. 

Towards the close of the day the expedition came in view of 
the enemy's out-posts. The work of observation svas at once be- 
gun, the officer in command taking care to make as deceptive a 
display of his numbers as the lay of tlie ground permitted. 



I)l'IUN(; TIIK WAI!. 



From early morning these tactics were repeated tiie next day 
and tiie next. Tliere was a barn stored witii forage equidistant 
between tlie piclcets and tlie position iield by ttie Confederates. 
Butler would occui)y the house by day, but his soldiers would 
withdra.v' at uightfal], when Pickett's volunteers would obtain 
from it food for their animals. When the expedition first drew 
near the Fedei'al out-posts (xen. Roger A. Pryor, a successful 
lawyer and brilliant advocate at the New York bar, [now a wise 
and trusted .Judge] who had joined as a volunteer, was solici- 
tous to engage them. But the officer in command would not al- 
low it to be done. He offered no explanation of Pickett's de- 
signs and Gen. Pryor retired from what appeared to be, purpose- 
ly, a tame anil inglorious service. A collision of his loose ar- 
ray with diseipiinod soldiers. Col. Scott thought would disclose, 
to the acute perception of Gen. Butler, the deception he was 
seeking to impose on him. In this attitude things continued 
until the third or fourth day, (Pickett said that the expedi- 
tion was absent five days) when a reconnoisance in force 
preceded by skirmishes, issued from the Federal lines and ad- 
vanced on the highway leading to Petersburg. That morning 
the officer commanding the Confederates had been told by a cit- 
izen, who had come from his home to witness the outcome of 
those singular movements, that Butler's colored soldiers had 
visited the vicinity of their camps and had learned from the 
resident negroes the insigniflcent force opposed to them. It 
was evident to the officer then that the Federal reconnoisance 
had been sent out to discover the truth, and Col. Scott replied to 
his informant: "What was true yesterday is not true to-day, 
and we are prepared now to receive Gen.Butler's reconnoisance." 
The volunteers had been broken into many parts and were scat- 
tered along the enemy's frunt. With one of these, consisting of 
three or four men, the leader retired before the skirmishers un- 
til he reached tlie point were the rail-road crossed the higliway. 
There Colonel Scott halted and, after placing his men in a 



8 DURING TlIK WAK. 



protected situation, returned to talce a nearer view of the ad- 
vancing skirmisiiers, an inexcusable act, for already he had won 
the prize for which he had been playing the game of war. His 
horse was fatally wounded in the head by a bullet from the 
skirmishers, but procuring another, he continued the retreat as 
before. As soon as the railway was crossed a dense body of 
wood was entered and it was observed that cavalry had been 
thrown before the skirmishers und were making ready to charge. 
It then became a contest of the spur, and the Southerners 
reached the Confederate outpost in safety. A round of musket- 
ry emptied a good number of saddles, and General Butler's re- 
connoisance retreated to his camps. The citizen soldiers did 
not reassemble, for each man was conscious that Pickett's de- 
sign had been carried into effect, and that Petersburg was safe. 
When Colonel Scott reported to Genera) Pickett that the expe- 
dition to Butler's camp had been successful he was received 
very cordially, though Pickett, indeed, by the arrival of Beaure- 
gard, was the first to be informed of the success of his own de- 
signs. Had Butler been apprized of the situation at Petersburg 
during the interval between the occupation of City Point and 
Beauregard's coming, fair Petersburg would have yielded her- 
self his captive and Richmond, in an unguarded point, been ex- 
posed to attack. His first object was to sever the Southern con- 
nexions of Richmond, as appeared by the attack on Port Wal- 
thall Junction, repulsed by the gallant Haygood, as wpll as by 
the attempt of Cautz's cavalry division on the railroad running 
South from Petersburg. 

Soon after these occurrences Col. Scott was sent to take charge 
of the forces stationed for the defence of High Bridge, spanning 
the Appomattox near Farmville, composed of three hundred re- 
serves — men over, and youths under, the military age. When 
Gen. Kil Patrick, with fifteen hundred Federal cavalry, reached 
Burksville, ten miles from High Bridge, with the purpose to 
destroy that link of the railway between Richmond and I^ynch- 



I)rRIX(i THE WAll. J) 

burg, Colonel Scott again employed with entire success, but un- 
der widely different circumstances, ttie stratagem of war whicli 
had been imposed on General Butler and so preserved that state- 
\y and costly edifice from destruction. Doctor Thackston, the 
distinguished dentist, and honored citizen of Farmville, having 
been embodied in the reserve branch of the Confederate army, 
was a most intelligent and efficient aid de camp on that occa- 
sion. 

A Note. 

W'hen, after the termination of the Civil war, CoL.Judson was 
a visitor at Warrenton Va., he expressed the wish that Colonel 
Scott would call to see him at his hotel, which, as soon as Col. 
Judson's wisli was communicated to him, he was very glad to do. 
Col. .Judson then informed him that he was with General But- 
ler at City Point, the time of his landing, in command of a regi- 
ment of horse and, along with other officers, had entreated the 
General to allow them to capture, or drive away the confeder- 
ates that were hanging about his pickets,but the General refused 
his permission, saying: "He was unwilling to expose his men 
to the masked batteries of the Rebels." 

Xelter jfrom Br. Xlbacf^ston to Col. Jobn Scoti, 

Farmvillf<:, Va., Sept. 14, 1894. 
Col. John Scott, Warrenton, Va., — 

Dear Colonel Scott: — I hasten to explain and apologize for 
an accidental delay in acknowledging a printed copy of General 
Cabell's letter, and your own account of the masterly strategy 
which under your direction and supervision saved from the 
enemy High Bridge and the City of Petsrsburg. 

Your enclosure was received while I was too much indisposed 



10 DURING THE WAR. 



to write, or do any thing else, and in some way was misplaced 
and only just recovered from a package of letters and papers fil- 
ed away to be attended to on my recovery. 

T beg to thank you for the two papers, which I have read with 
great interest and satisfaction, and especially for the handsome 
personal allusion you made to the service it fell to my lot to ren- 
der you at High Bridge. 

I don't exactly understand the need of General Cabell's letter. 
Has any one dared attack you military record? If so you may 
spare yourself any concern or solicitude, for there are hundreds 
and thousands of old Confederates yet left who stand ready to 
vindicate your patriotism and courage in the field and your 
a'jilities and skill as a commanding officer in the armies of the 
Confederacy. Had the war lasted a year longer, your office and 
title would have been General instead of Colonel of a regiment, 
Of this I feel assured and satisfied. 

Are you going to write a book of your campaigns? If you are 
set me down for a copy. 

Again thanking you, my dear Colonel, for your favor and 
kind rememberanoe, and with every good wish for your success, 
health and happiness, I again have the pleasure of subscribing 
myself very truly and faithfully your friend and obedient ser- 
vant. 

W. W. H, TlIACKSTON. 



Note, — As an explaiiation to Dr. Thackston we add that Gen- 
eral Cabell's letter was written to explain the military reason 
because of which the rank of Colonel was conferred on Col. Scott 
in Trans-Mississppi, the power to do which had been conceded 
to the Commandant of that Department by the military author- 
ities in Richmond after they had lost control of the Mississippi, 
and communication had become irregular and difficult. 

Editor of Fnde.r. 



I)UKIN(J TIIK WAR. H 



(3en'l Cabell's Xetter. 

Oeru ral W.L. Cabell — a member of the honorable and clistin- 
g-uished C.ib^ll family of lower Virginia, and a graduate of West 
Point, — when the civil war began was Quarter-Master General 
of Beauregard's command at Manassas, a position of peculiar re- 
sponsibility in the rapid organization of the first army to breast 
the onset of the great Northern power. Later General Cabell 
was promoted and was transferred to an infantry command in 
the South where he won fame on many a hard-fought held for 
conduct and gallantry, and from his men the appellation of "old 
Tiger," or rather "old T-i-g." Finally he was sent to the Trans- 
Mississippi Department of the Confederate States where he in- 
creased his high reputation as a solidier. His superior otHcers 
were General Holmes, Commandant of the State of Arkansas, 
and General Kirby Smith, the Military Chief of the entire De- 
partment West of the Mississippi, consisting of the States of 
Arkansas, Texas and the greater part of Louisiana. After the 
Federal gunboats obtained control of the Mississippi river the 
Department of Genei-al Kirby Smith, for the purposes of the war, 
was completely severed from the Confederate States and was 
thrown on its unaided resources. It was a diflficult thing then 
for a Confederate soldier to cross the river, policed night and 
day by gunboats and its banks patrolled by Federal cavalry, 
with spies and informers everywhere. Then it was that the 
power to bestow military rank was conferred on the Command- 
ant of the Department, thus sundered from the Confederacy, 
which was generally done on recommendations originating with 
the officers of the several commands. 

When the war closed General Cabell removed from the vicin- 
ity of Fort Smith, where his family had resided, to the city of 
Dallas in Texas, of which repeatedly he has been elected Mayor, 
a mark of the honor in which he is held bv his neighbors and 



12 DURING THE WAR. 



fellow-citizens. The following letter addressed to the Common- 
wealth's Attorney of this county, explains itself, and shows the 
appreciation as a solidier in which ho was held l)y his comman- 
der: 

Dallas, Tex., Dec. 28, 1890. 

Col. John Scott, Warrenton, Va: 

Dear Colonel. — Your letter of the 16th came to hand to-day. 
It gave me much pleasure to receive it, and much more to know 
that you were still in the land of the living. 

It has been a long time since we parted, and I would state 
from memory that you reported to me early in the spring of 1863, 
probably March or April, as Major. Needing an officer of your 
experience and military knowledge to take charge of one of my 
important out-posts,I found trouble on account of your rank, and 
in order to make use of you as an officer much needed I made 
you a Colonel and put you in command. I reported it to Major 
General Holmes in command of the Department, and it was ap- 
proved by him and forwarded to General E. Kirby Smith who 
confirmed the appointment, as I alwaj^s understood he had au- 
thority to do ; and in a personal interview with both Generals 
Smith and Holmes your appointment was referred to, and both 
reiterated their approval. After my regiments were all filled 
with officers and after I moved my command to South Arkan- 
sas, yau applied to go to Virginia as Colonel, and was allowed to 
go as »ftuch. I can say that you did your duty as a brave, true 
and patriotic soldier; and I hope that you may live many years 
to come. As to this being an irregular warfare, I had one of the 
finest brigades in the Confederate service — as well drilled and 
disciplined as any brigade in the Army — fought as many hard 
battles as any one brigade — killed more federals, white, black 
and red, than any one brigade in the Army, The number of 
fights and the number of men lost in battle will prove what I 
say. Look at the losses of my Brigade alone at Back Bone 
jNIountain, Poteon River, Arkadelphia, Wolf Creek, Spooners- 



DURING THE WAK. 13 



ville, Proniis Ij'Anne, Poison Springs, Elkins Ferry, Marks Mill 
(where I captured a train of nearly three hundred wagons, a bat- 
tery of artiller.v — Robb's Indian battery, six pieces— and four- 
teen hundred prisoners.) At Poison Springs we captured, Mar- 
maduke and myself, a train of 200 wagons, two pieces of artil- 
lery, about fifty prisoners, and killed nearly four hundred, prin- 
cipally negroes of the 1st Kansas, colored. Also Loutonville, 
Glass Village, Pilot Knob in Missouri, Franklin, Jefferson City, 
Lexington, La Mine, Independence, West Point, Missouri, the 
Little Blue, Marrie De Cj^gne, Mine Creek in Kansas where I 
was captured in the open prairie. Beside these the Brigade was 
in a great number of skirmishes. lam inclined to think that 
this is not the proper time for old Confederates to hi7nt up flaws, 
if any ever existed. In the rank of those men who went out to 
save their country. Yes, sir, you are a Colonel, with all the 
rank that could be conferred on you by Kirby Smith on the rec- 
ommendation of General Holmes and General Cabell, and I 
hope that you will Jive many years as pleasantly with your fam- 
ily and friends as you served with me. 

Will try and see your sons and hope that when you come to 
Texas that you will pay a visit at my home in Dallas. Please 
give my respects to my old friends, especially General Payne. 
Wishing you and yours a merry Xmas and a happy new year, 

I am your old friend, 

W. L. Cabell. 

jfirst /IDanassas. 

CLOSING SCENES OP THf: BATTLE — CAVALRY PURSUIT. 

The Dispatch has received the following, which is "inscribed 
to the ladies of Richmond for their generous fidelity to the 
lost cause." 

Dispatch. 



14 DUKING THK WAR. 



Warrenton, Va. 

The Editor of the Richmond Dispatcli ; The subjoined letter, 
vvhicli I request you to publisli in your wide-spread and metro- 
politan journal, is from the artistic pen of Captain William 
Fitzhugh Randolph of Greenville, Mississippi. Ca[)t. Randolph, 
himself a gallant Confederate officer, is brother to Bishop Ran- 
dolph of Virginia, and of the military and historic family of 
the very distinguished Capt. Buckner Magill Randolph, of the 
Confederate infantry, as well as kinsman to the courageous and 
accomplished Colonel Robert Randolph of the cavalry corps at- 
tached to the Army of Northern Virginia, but who sleeps now 
witli the unnumbered dead of our great civil war. 

John Scott, of Fauquier, 
Colonel of Cavalry, 

Confederate States Army. 



Greenvit.t^e, August, 1895. 
Colonel John Scott: 

My. Deal* Colonel, — I hope you will excuse the delay which 
has occurred in my answer to your letter, received some weeks 
ago, which has been occasioned, first by my absence from home, 
and then by a spell of fever, from which I have only recovered 
in the past few days. 

The extract which you give from Col. Munford's report (see 
for the report itself, page 534, Official Records of the Union and 
Confederate Armies, Series 1, Vol. 11) is so entirely inaccurate 
and at variance with all my own experience,thatl think it better 
to supplement your own narrative by giving a brief account of 
my observation of some of the incidents of that memorable day. 
I did not at that time, as, perhaps, you are aware, belong to any 
organized command, but had been in company with a few choice 
companions, scouting in front of our army, and on the day of the 
first battle of Manassas acted as a sort of free lance, taking in 



DURIN(; Tllli: WAR. 15 



the battle from the various stand-points, which gave the best 
promise of interest and incident. It is well understood now 
that we were on that day out-generaled at every point. Tlio Fed- 
eral commander, by a sham attack on the 18th, had masked his 
real design, while he marched the bulk of his army around by 
Sudley Mill, and thus precipitated a superior force upon the un- 
protected left flank and rear of the Confederates, turning our en- 
tire position, and rendering absolutely useless all the defences 
which had been erected at Manassas, the day being only saved 
by the indomitable courage of a few Confederate brigades, who 
fought with a persevering tenacity which has been rarely equaled 
and never excelled on any of the great battle-fields of the world. 
Our army numbered nearly 30,000, and less than 10,000 of that 
number, through that long and terrible day bore the whole 
brunt of the Federal onset. Step by step, contesting every inch 
of ground with desperate courage, our line was slowly but 
steadily driven back by the sheer weight of the Federal ad- 
vance, outnumbered, as they were, almost ten to one, 

HEINSELMAN'S REPORT. 

Heinselman, who commanded a division of the Federal army, 
stated in his report to the department at Washington, with 
grim satire, that their defeat was not the result of masked bat- 
teries, or overwhelmning numbers, but because regiments re- 
pulsed brigades and brigades drove back divisions. But not- 
withstanding this fact, the Confederate line was gradually forc- 
ed back up the long slope leading to the Henry House. When 
reinforced by a few regiments of fresh troops, which had been 
hurried up from Manassas, the thin Confederate line closed up 
for a last stand on the apex of the ridge which overlooked the 
stone bridge and the whole ground over which the enemy had 
been advancing. I stood close behind, looking at the long sol- 
id ranks of the enemy as they were massing for a final assault, 
for as I glanced along our line, it seemed almost certain that 



16 DURING THK WAR. 



those worn pnd tired soldiers who had fought through the Jong, 
liot day, their ranks depleted to one half of their original 
strength, would surely be overwhelmerl at last by the impact of 
numbers. Bee and Bartow had fallen. Of the Fourth Alabama 
which had entered the fight 850 strong, more than 400 had gone 
down on the bloody field, and all that were engaged had suffer- 
ed in the same proportion, but with ranks unbroken, resolute, 
and dauntless still. Johnston and Beauregard both were urg- 
ing and encouraging the troops, and fully exposed to the whole 
Federal fire, the minnie-balls coming thick and fast. Jackson 
stood near his brigade, with cap diawn close over his eyes, 
stern and silent, awaiting the catastrophe, and rendered rather 
more consi)icuous by a white handkerchief wound around his 
left hand, which had been slightly wounded by a bullet. 

8UCII THE SITUATION. 

Such wa« the sit nation when looking to our left. On the right 
flank of the Federal advance, and a little in its rear, we saw the 
gleam of bayonets on the crest of the hills. It was but a single 
brigade 3,003 strong led by Kirby Smith, who hearing the steady 
firing from the cars at Gainesville, had come across the country 
straight for the battle-field. As the brigade poured over the 
crestof the hill the p ice was quickened to a double-quick, rush- 
ing down on the enemy's flank, firing and shouting as they 
came. The Federal line halted, then wavered, wheelinga little 
to the right, as if to meet this fresh enemy, but their hearts 
seemed to fail them, before that onward rush, and the right of 
thp line began to crumble like a rope of sand. Then it was that 
I saw Jackson raise his wounded hand and point down to that 
wavering line. Those worn and tired soldiers needed no second 
bidding. They knew their time had come at last, and apparent- 
ly as fresh as when the battle opened in the morning, thosf^ 
young volunteers leaped like bloodhounds down the bill, and 
closed with the foe. 



DIKIXC; THK WAR. 17 



The end had come, and the battle was won — a victory as amaz- 
ing as it was enexpected. A moment bpfore the advance of 
tlie solid blue lines seemed irresistible; now in the wildest pan- 
ic, the whole field covered with a host of disorganized fugitives 
flying as if all the devils of the lower regions were behind 
them. I was on many a hard-fought field afterwards, but never 
saw I a scene like that, musket, knapsack, everything in fine 
that impeded flight was thrown away, and the disorganized, 
panic-stricken masses poured like an avalanche across the turn- 
pike, over the Stone bridge, into the woods and fields beyond. 
THE PRESIDENT. 
At this juncture I was standing not far from the Henry 
house. Generals Johnston and Beauregard were with President 
Davis, who, hearing that the Confederate army was retreating, 
had come in a special car from Richmond, and had just ridden 
upon the field. Capt. Davis, at the head of the Albemarle Troop 
of cavalry, rode up tlie hill, and was immediately ordered in 
pursuit. As the troop was passing near me Archie Smith of 
Winchester, a member of the company, and a near relative, call- 
ed tome to join them, which I was very glad to do. We pass- 
ed close to Mr. Davis, with the two Generals, who raised their 
caps to us, and giving them a rousing cheer, we rode on. At 
first our progress was slow as we came up with the two regi- 
ments of South Carolinians, (Kershaw's Brigade,) who together 
with Kemper's Battery, had been ordered to follow the enemy. 
We crossed the Stone bridge, on the Warrenton 'pike, about a 
half mile beyond the hill, Atthis point the two regiments of 
infantry halted on the left of the road, and the Albemarle com- 
pany formed on their right. Kemper's Battery then unlimber- 
ed, the guns were run out to the front, and commenced firing 
down the 'pike at what appeared to be a receding cloud of dust. 
The firing was kept up about fifteen minutes, until all signs of 
tlie fugitives had disappeared, resistance on their part having 
entirelv ceased. 



18 DURING THE WAK. 



NO ORDERS. 

No orders being received to continue tlie pursuit, tlie Caroli- 
neans remained wliere tliey liad lialted. Captain Scott, whom I 
tlien saw for tlie first time, rode out into the road, and called 
for volunteers to continue the pursuit. Captain Davis respond- 
ed that his troop was ready. Tlie gallant Captain Scott did not 
wait a moment, but dashed on, followed by Captain Davis's sixty 
men. Captain Scott, rendered conspicious by a white havelock, 
rode considerably in advance. Finding no obstruction to our 
adv^ance, our pace was greatly accelerated. Occasionally a few 
of the troopers would dropout of ranks, gather up some of the 
flying enemy, and start for the rear; but for the most part very 
little notice was taken of these fugitives, as they scattered right 
and left, we, riding through and over them, looking for better 
game. 

About sunset we descried in the distance a cloud of dust, evi- 
dently made by a part of the flying enemy. We S[)urred our 
liorses to a furious gallop, and dashed down upon them. We 
soon found what they were, some ten guns, I believe including 
tlie black 32-pounder, called "Ljng Tom," which was to play 
such havoc with the Confederate ranks! The cannoneers and 
drivers made a desperate dash with their guns at Cub Run 
bridge, which was iinmediately in their front. But, crowding 
too rapidly on the bridge, it broke under the weight, and bag- 
gage-wagon, ambulance, caison, and all fell through into the 
stream below, forming an impassable barrier, which blocked 
the way and effectually prevented further passage. The can- 
noneers and drivers leaped from their guns and liorses and dart- 
ed into the bushes on either side of the run, leaving everything 
an easy capture. 

ate:.[ptatio\. 

Tlie temptvition was too great for the avHrage cavalrymi(n,and 
Captain i)avis liiniself with most of his men,(lisniounted andcoin- 
mened work on the tangled wreck. I myself,was Jibout to dismount 



DUKIXC; THE WAR. 19 



having an eye on a fine McClelland saddle, which I wanted to 
secure, when Archie Smith, who was still at my side, turned to 
me and said : " Yonder goes the "White Havelock, Will!" "All 
right," I replied and we dashed after Captain Scott, who was 
crossing the stream above the wreck and debris, waving to the 
men to follow him. About fifteen of Davis's men followed us, 
but tlie most of them remained behind to work with the guns 
and secure horses, saddles, and other plunder. We joined Cap- 
tain Scott on the other side of the run, and continued our wild 
ride faster than ever. We soon came to the foot of the hill upon 
which the little town of Centreville is situated. Crossing a small 
stream at the base, we rode rapidly up the slope, and on the 
crown of the hill came in immediate contact with a long blue 
line of Federal infantry, drawn up in battle-array. Riding up 
close to them Captain Scott shouted, "Surrender!" For a few 
seconds they seemed to hesitate, but hearing no sound of any 
advaning along the turnpike in our rear, an officer turned to his 
men and ordered them to Are. Our little band retreated at once 
and dashed down the hill rather faster than we had come up,re- 
ceivingas we went the whole fire of perhaps throe hundred in- 
fantry. Not a man, however, was hurt, and we were soon out 
of sight, hidden by the shades of night. 

A WHOLE BRIGADE. 

I ascertained afterwards that the troops we encounted on the 
heights of Centreville were a brigade, under Colonel Miles,which 
had never been in the fight, but had been left to cover the re- 
treat of the Federal army. 

With reference to the capture of the artillery and spoil at Cub 
Piun bridge, the assertion that any command, except the Albe- 
marle Trcop, led by Captain Scott, had anything to do with it 
is without foundation. No other cavalry was in sight or hear- 
ing at the time, and had it not been for the headlong, furious 
charge of these sixty men, all these guns, undoubtedly, would 



20 DURING THE WAR. 



have cresset! the bridge in safety and been on their way to 
Washington long before any other command had reached the 
scene. To Captain Scott, therefore, and to him alone, the sole 
credit of the capture is due. The only part in the affair perform- 
ed by Col. Munford and his command was in manual labor, re- 
quired in hauling the cannon out of the wreck, securing the 
horses etc. Had the other cavalry leaders exhibited the same 
energy, daring and enterprize which characterized Captain 
Scott, it is not at all improbable that the cavalry arm of the 
service alone might have ridden to Washington that night. But 
satisfied with what had been done, the army remained quiescent, 
our generals not even knowing, until next day, that the enemy 
had disappeared. Thus ended the first battle of Manassas, mem- 
orable not only for the marvelous rout and panic which char- 
acterized its close but also for the absolutely inconsequential 
result which followed so complete a victory. That an army of 
30,000 men, finshed with victory, enthusiastic, clamorous to ad- 
vance, without an organized force in its front, capable of resist- 
ance, should have laid in camp for six long months without 
making the slighest efforts, is almost incredible, and altogether 
past human understanding. 

Had the army advanced the next day, or even the day after, 
Washington would have fallen almost without a battle. We 
would have taken possession of Maryland and the whole face 
and character of the war would have been changed. That no 
attempt was made to do this exhibits on the part of our generals 
an incapacity and want of enterprize which has no parellel in 
the annals of war. General Johnston had visions of Patterson 
appearing on his flank and rear, and of frowning batteries on 
Arlington heights, when the truth was that Patterson had al- 
ready crossed the Potomac, and his army, ready to disband, 
was fast disappearing over the Maryland hills, . while the bat- 
teries on Arlington Heights had no existence at all. 

Had the energy and skill which distinguished the cami)aigns 



DURING THE WAB. 21 



of Lee and Jackson been shown by our generals, who command- 
ed that day, then would the First Manassas have been ranked 
among those great battles of history which have decided the 
fate of nations and exercised a controlling influence on the civ- 
ilization of a continent. 



W.F. R. 



^ajor (3or&on's Xetter. 

AT FIRST MANASSAS. 

THE CAPTURE OPTPIEGUNS AT CUB RUN BRIDGE. 



A LETTER TO COLOIIEL JOHN ScOTT. 



Charlottesville, Va, Feb. 12, 1896, 
Colonel John Scott Warrenton Va: 

My Dear Colonel, On Monday I received your letter of the 
9th instant, with your address to the Junior Albemarle Light- 
Horse and your report of the effective service of the old com- 
pany at the First battle of Manassas, with Captain Randolph's 
letter, as a companion-piece, and read them all with pleasure 
and interest. 

This morning I called upon Captain Nelson, of our new com-* 
pany and presented him the papers, as you requested, but after 
reading them aloud to him I begged the privilege of retaining 
them for a day or two, as I am anxious to read them to a few of 
my old comrades, who are living in town, before they are pub- 
lished, which Captain Nelson proposed to have done. 

I hope you will pardon my delay in acknowledging the re- 
ceipt of your communication, addressed to the Mayor of our 
city. These papers were handed me by a member of our camp, 
about a week ago, with the request that I would attend to the 
matter. It was at the commencement of the February term of 



22 DUKTXG THE WAR. 



our Circuit Court, when I was very busy, and could not give the 
subject the consideration and attention 1 desired, and which it 
deserved. 

I have not, liowever been unmindful of my duty in the prem- 
ises, for I have talked the matter over with several of my old 
comrades, whom I chanced to meet, and so far, every one of 
them has substantially sustained Captain Randolph's letter and 
your report of the capture of the enemy's artillery at Cub Run, 
and I am satisfied that your report and letter ai-e strictly and 
accurately correct; though I am sorry to have to acknowledge 
that [ was not one of the brave boys who followed 
the "White Havelock" across the memorable stream on that 
eventful day nor was I present in the barn at Camp Wigfall, 
when your report was written, for on that day our worthy and 
gallant captain had me detailed to cook dinner for the com- 
pany against my very earnest protest. 

Since I received your letter on Monday however, I have been 
fortunate enough to meet Willis Gooche, W. D. Wheeler and 
George Marshall, all three of whom were at Cub Run, and fol- 
lowed your lead across, and charged the line of infantry. Their 
recollection corresponds with the facts as stated in your report, 
and they all say that they saw no other cavalry in sight when 
you made the charge. I very well remember that the capture of 
the enemy's guns by the company was claimed after the battle 
by every officer and man in it. 

INDELIBLY FIXED. 

Many of the incidents of that day are indelibly fixed in my 
memory, and recently I have been refreshing my recollection by 
talks with those of my old comrades whom I chanced to meet. 
When your command was ordered forward from our position, 
near the Lewis House Walker's Battery, which belonged to Gen- 
eral Holmes's command had arrived on the field, and opened fire 
on the retreating column of the enemy on the 'pike, across fkill 
Run, and as well as I remembor his first shot |»longhed a gap in 



DURING THE WAR. 23 



their rauks. Your command then went forward,! think in front 
of Kemper's Battery. Of course, as a private in the ranks, I 
could get very little general idea of the fight as it was going on ; 
but an incident which occured at a small frame house near the 
'pike, which I remember very distinctly, makes me think I am 
right. Some seven or eight of my company had been ordered 
forward, as an advance guard. When we came to this house we 
found a number of Federals in and behind it. We ordered them 
to surrender, which they seemed very glad to do : but one fel- 
low did not throw down his gun as quickly as my comrade Pat 
Marshall, thought he ought. Whereupon Pat raised his gun 
and fired, but missed his man. Just then you rode up, and 
drawing j^our pistol said, "I will shoot the first man who mis- 
treats a prisoner,^' which scared my friend Pat more than the 
Federals had done. 

Soon after the occurrence, when a number of prisoners were 
being sent to the rear from this point, you moved our company 
from the road to the skirt of an adjacent wood, and then it was 
that Kemper's Battery opened fire down the road on the re- 
treating enemy. 

ASKED FOR ASSISTANCE. 

While we were drawn up in line on the edge of the wood, 
fronting a small field, an infantry soldier approached our line 
and stated that Captain Radford was dangerously wounded; 
that he had heard Captain Scott's name and asked that he 
would send some one to his assistance. You immediately or- 
dered Dr. William Shackleford, then a private in our com- 
pany, and myself to ^) to Captain Radford. We found him 
near the edge of the woods, about two or three hundred yards 
from where our company wasdrawnupin line. As soon as 
Shackleford looked at him and saw how he was shot he said that 
Captain Radford could not live thirty minutes, and I think he 
was dead before we got him into the ambulance. He was the 



24 DURING THE WAR. 

first man that I ever saw die, and I well remember his last 
words, "God have mercy on my dear wife and children." 

It was while Shackleford and I were with Captain Radford, I 
think that you again started in pursuit of the enemy. This ac- 
counts, my dear Colonel, for my not being with you at Cub Run, 
and beyond it which I am glad of, for I would not like my old 
commander to think me a laggard when such gallant work was 
being done, under your dauntless leadership. 

I recall my service while under your command, as one of the 
pleasantest of my war experiences ; and especially the scouting 
party you took some six or seven of us on across the Occoquan. 
It was when you sent our horses back, and we footed it through 
the woods and fields to within a short distance of Alexandria, 
and learned that the enemy were getting ready to advance. 
(They had advanced, and a Baltimore Sun of that day was pro- 
cured which, as soon as we returned to camp, was forwarded to 
General Beauregard.) On that scout, while resting under the 
shade of the trees, I know you taught me some history and 
much States' right's doctrine. That day at old Mr. Nevitt's, 
where we were so kindly and hospitably entertained by the old 
people and their two beautiful daughters, has always been 
marked with a white stone in my memory; and I have often 
wished to read the novel which you promised the young ladies 
you would write, after the war, in which the scene was to be 
laid at and around Gunston Hall, and the fair damsels were to 
be the heroines of the story. 

When I get a little leisure time I will try to procure the state- 
ments of as many of the survivors of the old Light Horse as I 
can, in reference to the charge and capture at Cub Run, and for- 
ward them to you. Already I have seen three or four who have 
promised to come to my office, read your report and giv^e me 
their recollection on the subject. 

I have never read Colonel Munford's report, but I think my 
friend and neighbor. General Rosser, has the war series, and I 
will borrow it and read his account. 



DURING THE WA K. 25 



I will be glad to do anything that lean to aid in this matter. 
With best wishes for your health and happiness, believe me to 
be, very sincerely, your friend, 

MASON GORDON. 

Sunday Bichmond Dispatch. 

Substance ot XTbe IReport 

Substance of the Re )oru made to Brig. Gen. Holmes by Cap- 
tain John Scott of Fauquier of the operations of his squadron of 
cavalry at the first battle of Manassas. 

At the battle of the 21st of July 1861 the extreme right of the 
Confederate Army was held by Brigadier (general Holmes with 
a brigade of infantry, Lindsay Walker's battery of artillery, and 
a squadron of cavalry. The last was composed of Captain 
Swann's Cavoline company, with Captain Eugene Davis' Albe- 
marle Light Horse under the command of Captain John Scottof 
Fauquier, the whole being quartered at Camp Wigfall, or the 
Hooe plantation, in the rear of Union Mills on Bull Run, mak- 
ing the right bank of that stream the Confederate line of battle. 
After the Federal General developed that his plan was to assail 
Johnston's and Beauregard's left at Sudley Mills, leaving the 
right unmolested, Brigadier General Holmes marched his force 
towards the left wing where the sound of cannon and musketry 
informed him that the fight had opened. By the order of march 
his cavalry was in the rear, but very soon he sent them to the 
front witli order*! to report to Beauregard at the Lewis House, 
where the command remained inactive until the Federal line 
was broken. Whilst it was drifting along in the forward move- 
ment, Captain Scott reported anew to Gen. Holmes for orders, 
who told us "to pursue the enemy.' Theu a period of activity 
began which was not slackened until the battle closed, though 
Swann's gallant and regretted companv was detached by Gen- 



26 DUKTNG THE WAK. 



eral Beauregard's command "to guard prisoners," leaving Eu- 
gene Davis' Liglit Horse unsupported to obey General Holmes' 
command. After crossing Bull Run at Stone Bridge the com- 
pany encountered the Federal Reserve from which the prison- 
ers were taken spoken of in General Holmes' Report, an easy 
capture, for the cartridge box of each was full except the cart- 
ridge which was fouud in his musket. It was a little after the 
point on the turnpike was passed where the gallant Captain 
Radford lay mortally wounded that the Albemarle company 
was united with Colonel Kershaw's South Carolina brigade of 
infantry the officers of the res{)ective commands agreeing in 
conjunction to pursue the enemy, then visible in the turnpike 
not far ahead. When tlie Confederates liad readied the section 
of the turnpilce where the fall of the ground towards Cub Run 
Bridge began the pursuit ceased, it being near sunsetting. The 
gallant Kemper, with his battery, was in the advance, occupy- 
ing tlie crest of tlie hill and was engaged in a,n artillery duel 
with the enemy stationed near or across Cub Run. Kershaw's 
brigade was in the immediate rear of the battery, with Eugene 
Davis' company of cavalry on its riglit flank. To the rear of the 
of the extension of the right flank of the Albemarle men was 
posted another command of Confederate cavalry. 

At the termination of the artilleiy duel, but whilst things 
were in this attitude, an ofttcer, who proved to be Major Hill of 
Georgia, rode into the open space on the riglit making proclama- 
tion that he wanted a squadron of cavalry with which to cap- 
ture the enemy's artillery. As soon as the officer had reached 
the front of the position, occupied by the Albemarle Light Horse 
Captain Scott advanced and said to him : "I have not a squad- 
ron, but a company ready for the servici.'," The officer replied 
that a company was sufficient. It was in answer to a question 
from Captain Scott that Major Hill pointed across the turni)ike 
as the direction which he dersired tlie pursuit to take. To get 
clear of the soldiers who occupied the road it was necessary for 



DURING THE WAK. 27 



the command to pass to the front of the battery and there cross 
the turnpike. But at some period before this had been done the 
Albemarle men had been recruited by two other adventurous 
spirits, one was a Doctor from South Carolina who had discov- 
ered that daj^ tliat he had joined the wrong arm of the service: 
the other was Captain William Fitzhugh Randolph, brother to 
Bishop Randolph of Virginia and of the family of the courage 
ous and accomplished Colonel Robert Randolph of Stuart's Cav- 
al ry. 

After the troopers had penetrated the open field but a short 
distance a Federal soldier was seen making his way over the 
hills in the direction of Centreville. The Column was halted 
and a trooper dispatched to capture the fugitive and bring him 
to the commander. Whilst this was being done the officer in 
command advancing put a revolver to the captive's head, say- 
ing: "Tell me the direction taken by your artillery." The sol- 
dier replied "you are going in the wrong dii'ection." The artil- 
lery has gone down the turnpike and is not far ahead," The 
prisoner was released, the column was reversed and headed for a 
lower point on the turnpike. That -ssas attained, its pace was 
quickened to half speed. Captain Randolph observing: "I sup- 
pose we are going to the devil, but I will follow the White Hav- 
lock." The sound from the armed iieels of sixty horses on the 
hard road might serve as notice to the Federals at Cub Run 
Bridge of the approach of the hostile body and it soon appeared 
that the notice had been received and had not bean disregarded. 
The crossing below the Bridge, where the passage was widest, 
was a pack of commissary ,quarter masters and suttlers' wagons 
from which, in the haste of departure, the lead horses only in 
some cases had been carried off leaving, a rich spoil to the cap- 
tor, whilst Cub Run Bridge was occupied by a train of artillery. 
The c.iunoniers with their attendants had been more faithful to 
their ch:irge than the wagon masters had proved. They did not 
abandon their guns until the Confederates were upon them 



I>U KING THE WAR. 



when they too disappeared in the circumjacent forest. It was 
reported to the commander that ten pieces of artillery with 
their caisons had been taken and amon^ them a gun which the 
Federals had named Long Tom and from which great results 
had been expected. 

The capture,at once, was turned over to Captain Davis' and Cap- 
tain Scott with fifteen volunteers crossed Cub Run, taking the 
Road to Centreville, to discover the whereabouts of the enemy 
and the extent of the disaster that had befallen the Federal 
arms. But the progress of the pursuers, at first rapid,was slow, 
the men often breaking from the command to pursue and cap- 
ture fugitives from Cub Run Bridge whom they would despoil of 
their private arms and immediately liberate. Coming to open 
ground the Confederates discovered Federal infantry on a hill 
before them over which the road passed. These were rapidly 
charged and when reached a demand of surrender made by the 
officer in command of the party. But instead of a surrender, 
the Federal officer gave the order '*to fire" which was obeyed, it 
was estimated by three hundred muskets. The little band of 
Confederates escaped destruction by the accident of having been 
halted on the turn of the hill where a rai>id discent 
began. As it was, neither man nor horse was injured. It 
was quite dark when the volunteers reached their command, 
Captain Scott proceeding to Cub Run Bridge where he met Col- 
onel Kershaw. Addressing Colonel Kershaw he expressed the 
opinion that on account of the vicinity of the enemy, the cap- 
ture would not be safe from' recapture, if left to the guard of cav- 
alry alone, and proposed that two companies of infantry should 
be brought to the Bridge to act as an auxiliary force. But Col- 
onel Kershaw refused his consent to this proi>osal, but said, as 
Captain Scott had inustered his regiments into the service at 
Richmond, and therefore was known to both officers and men, 
he was at liberty to enter his camp and induce two companies 
to perform the night's service. Captain Scott at once, unattend- 



DURIXG THK WAR. 20 

ed, repaired to Colonel Kershaw's regiments and without 
dillicLiltj', or delay, brought back with him to the Bridge two of 
the gallant Carolina companies, from which their Colonel de- 
tailed pickets which he threw across Cub Hun. Captain Scott 
then resumed command of Captain Davis company which he 
conducted back to the Hooe Plantation, The next day as order- 
ered by General Holmes, to whom he had made a verbal report, 
he submitted a Report in writing, prepared in the great planta- 
tion barn, by which ho was sheltered from the falling rain, sur- 
rounded by his ollicers and men and with whom each part was 
canvassed before it was admitted into the lleport. It was dicta- 
ted by Captain Scott to Willoughby Tebbs, an A. M. of the Uni- 
versity of Virginia then a private in the ranks but who after- 
wards was elected to be an officer of the company, a distinction 
which he so well merited. He did not survive the war and was 
one of those priceless gems which the University of Virginia 
contributed from her graduates to the army of Northern Virgin- 
ia. After the battle the cavalry was thrown into regiments and 
Captain Scott was ordered to report to General Early for staff 
duty. From the Records of the war in the captured archives it 
appears that his written Report to General Holmes was not 
sent, with similar papers, to the Secretary of war and therefore 
all record of the service of the squadron in the fight was lost, 
but which it is hoped to substitute by this postponed but imper- 
fect account. It is true tiiat there is now a brief report, among 
the captured records, in which Gen. Holmes mentions the con- 
siderable number of prisoners and large amount of "property 
captured by Scott's cavalry" but he does not individualize the 
artillery, though, when it is known that all the property, cap- 
tured by the command in the battle, was captured at the time 
when the ten guns were taken at Cub Run Bridge, as shown by 
the foregoing narrative the word employed by Gen. Holmes 
was intended to include the artillery. Before the great battle, 
and under the command of General Early, Captain Scott with 



30 i)i;RiN(i TiiK WAi:. 



two companies, Thornton's Prince William Cavalry and Davis' 
Albemarle Liglit Horse, liad piclceted tlie crossings of tlie Occo- 
quan and the landings of the Potomac. In preparation for the 
approaching combat that command, with other outlying forces, 
was ordered to Manassas to participate in the first great trial of 
arms between the North and the South. 

Joiix Scott of FAUciuiER, 
Col. of Cavalry Confederate, States army. 

STUART'S REGIMENT OF EIGHT MEN. 



Warrenton, Va., Jany. 30th, 1896. 

Ma J. Norman V. Randot^ph, Richmond, Va. 

Dear Sir: A pressure of business must plead my excuse 
for not returning an answer sooner to your letter, requesting 
from me a certificate of the period during which you were with 
my Cavalry Battalion in the War of tlie Sections and referring 
particularly to a skirmish with Federal Cavahy, 

at Markham, in which you were the only man with me, when I 
left the ground on which it had occurred. As it was thought by 
Stuart to whom it was reported by one of his Aids, who had 
witnessed it. to have been a creditable affair, I will, I suppose, 
best attain the object of your communication by writing a 
sketch of it, as far as the particulars can be recalled. 

The Cavalry Corps was falling back before McClellan's great 
Army of Invasion, which started from Harper's Ferr3', delaying 
its march by unceasing combats with its advance, to give Lee, 
then in the Lower Valle3'^,time to throw his armj^ between Rich 
mond and the invading force. It was whilst this was being done 
that the Cavalry, with which my Command was connected, was 
at Markham in the County of Fauquier. Its place in the Cavalry 
Corps was as an attachment to the Fifth Regiment, command- 
ed by the gallant and accomplished Col. Tom. Rosser. When 



DURIX(J THE WAK. 81 



the march of the Fifth began for Barbee's Cross Roads, now 
Hume, all the men of tht Battalion, which were bringing up 
the rear of the Regiment, had been drafted for that day to act as 
sharpshooters under bravoCapt. Bullock, excepting eight men 
under my own command. The march had proceeded but a short 
distance from that part of the highway in front of Col. Strib- 
ling's residence, when a body of Federal sharpshooters issued 
from a wood on our left and attacked the Begiment. Major 
(icverly Douglas, so well and so honorably known in Virginia,at 
the moment, was in command. Very successfully and quickly 
ho charged the assailants and drove them back into the wood. 
One of my men an Irishman by the name of Kcegan, was about 
to follow the enemy into his covert, where he would have been 
bushwhacked, but I called him to return to me, as Major Doug- 
las only proposed to drive them otf. That, of course, was Major 
Douglas' affair, though the Battalion was fully engaged in it. 
It was claimed that the charge, had saved one of Stuart's batte- 
ries from capture. At least Major Dou\las, who was always a 
very gallant otBcer, claimed that as a result of the charge, and 
doubtless it was so. We had scarcely regained the road, and re- 
sumed the order of march, when the regiment was assailed in 
the rear by a body of Cavalry, coming from Markham now in 
possession of the Federals. Our pistols all had been emptied in 
the recent skirmish (I think I had one shot left) when the new 
attack was made. But, without orders, except from the urgency 
of the occasion, the two sets of fours, with their sabres drawn, 
turned on their assailants and forced them back into Markham 
on their reserves. But here another difficult^' was developed 
which threatenf^d to annul the value of the successful charge. 
When the men on the return mounted the hill, down which they 
had just driven the Federal Cavalry, it was discovered that the 
road in their front was occupied by the sharpshooters, whom 
^lajor Douglas, so recently, had driven oft'. There was a stone 
fence too, on the right side of the road, next to the Blue Ridge, 



82 DURING THE WAK. 



whilst the other side of it was effectually guarded by the advan- 
cing troops of McClellan. Here was a dilemma. It was soon re- 
lieved, however, by one of the men, who discovered a gap in 
fence, through which the command escaped, leaving the C-om- 
mander alone with Norman V.Randolph, but the two speedily 
followed the men. As soon as they saw their Commander the 
men gathered around him again and discovered that his horse 
had been wounded on one of his legs and was bleeding freely. 
When the Command had I'oached the top of the elevation across 
the road, and in front of Col. Stribling's house, the late Hon. 
Barnes Kerrick, Benjamin Figgins and others of the locality 
were recognized. From INIr, Kerrick directions were obtained as 
to the route among the hills which would enable us to return to 
Stuart. As we were descending the decline of the elevation, 
which looked west-ward, toward the Blue Ridge, our leader saw 
on the opposite elevation, or hill, only separated by a narrow 
strip of vallev, a body of Confederate Cavalry, apparently with- 
out an officer. He sent Norman V. Randolph to them with an 
order to report to him in the valley below very promptly, which 
they did. What ammunition there was among the men was 
distributed, and thus reinforced and prepared, the Command 
was ready for business again and none too soon, for descending 
the elevation, over which the Confederates had just passed a 
detachment of the Federal sharpshooters was seen in pursuit, 
expecting to kill or capture the original party of eight. But 
when they saw instead thirty or more of Stuart's Cavalry in 
line to receive them whose metal so recently, they had tried, 
they relinquished the pursuit and returned to their friends. The 
wounded animal, as an honored guest, was left at Mr. DeButt's 
residence in charge of the patriotic ''Secesh" ladies of the fami- 
ly, and after receiving the abundant and cordial hospitality of 
Mr. Henry M.Marshall for the night the Command united with 
Stuart at theCrossRoads,where,fortunately,the leader had a spare 
horse in his camp. Stuart was greatly pleased when informed 



I> L :RI N « T H E W A R. 38 

of the affair by his Aide de Camp, and proudly called those sol- 
diers "his Regiment of eight men." I hav^e not the datesbut caii 
say generally, that, from its organization to the time when I left 
it, you were with me, though then but a boy of fifteen years. I 
have given the affair at Markham with some detail because it 
was but an example of the hourly combats by which our great 
Cavalry Commander delayed the Federal march, so that Lee 
could interpose his devoted army, as a shield, once more be- 
tween the invader and Richmond. 

A word about myself. As soon as I reported to Generals 
Holmes and Cabell, iu the Trans-Misiissippi Department, my 
rank was raised to Colonel of Cavalry to enable me to take com- 
mand of an important outpost across Arkansas River, relieving 
a Lieut. Colonel. 

I hope this loose memorandum will answer your purpose. It 
will at least enable you, as the memories of the great War grow 
dim, to recall our double skirmish at Markham, and the charge 
of "Stuart's Regiment of eight men," one of whom you were. 

Your obedient servant and friend, 

John Scott of Fauquier, 
Colonel of Cavalry Confederate State's army 

Addendum: — The foregoing sketch was shown to a soldier of 
mj'' battalion, who, being along in the scenes, which it describes 
reminds me of some forgotten particulars. It was a squadron of 
the 11th Pennsylvania Cavalry which we, [the Fifth and my 
eight men,] drove through Col. Stribling's barnyard, which was 
adjoining the county road. In jumping the bars of the enclosure 
Major Douglas' horse blundered and fell throwing its rider and 
escaped in the direction of the Federal cavalry. But the activi- 
ty and courage of Norman V. Randolph , who was at my side, 
recovered the animal, though exposed to a heavy fire from the 
sharpshooters. The Federal cavalry attacked our rear but were 
repelled by a counter-charge, preventing the capture of a La. 
battery which, at tho time, was in the barnyard. I have been 



3i DURING THE WAR. 



reminded, too, that the Captain of the battery thanked me for 
the service rendered him, but I was only an officer acting under 
the direction and employing the troops of Major Douglas, who 
was present. 

John Scott of Fauquier. 
Colonel of Cavalry Confederate States Army. 



\lnlir\to\(/ 







Ubc Coupon dontroversi^ 

The coupon litig-ation of the state of Virginia with her Brit- 
ish Creditors is worthy of a place in the popular recollection be- 
cause of two interesting questions of State's Rights which are 
involved. It had been provided by her two debt settlements 
that the coupons, or certificates of the year's interest, attached to 
each bond, should be receivable for taxes and other public dues, 
and the Stipulation was printed on each coupon. The tax-re- 
ceivable coupon was an ingenious contrivance of the creditor to 
insure the application of the public taxes, in the first place, to 
the payments of the inteiest on his bond, however great might 
be the emergencj'^ pressing upon the Commonwealth, and was 
founded in distrust of the State's financial honor. These cou- 
pons, or certificates of interest, as they became due were separa- 
ted from the bonds, and were sold in the public market for as 
much as they would bring. In this way Virginia coupons had 
accumulated in the money centres of Great Britian, but chiefly 
in London, to an amount as great as four millions of dollars, 
but to become five millions, it was estimated, by the time the 
debt was paid, through the annual additions of coupon. As 
these debt settlements wore contested by the State for, unfair- 



36 AFTER THE WAK. 

ness and unconstitutionalit.y,no provision had been made by 
the Legislature for tlie payment of the coupons. The conse- 
quence was a rapid depreciation of the Virginia coupon until it 
became a subject of speculation. A band of London speculators 
purchased coupons to a large amount to dispose of to Virginia 
tax payers. 

If the speculation should prove successful, and the market 
value of the coupon was established, it was evident that Virgin- 
ia would be brought to the condition of a bankrupt by having 
her treasury filled to repletion with tax receivable coupons as 
often as the legislature should impose taxes, for the state would 
be compelled in this way to pay the five millions of debt before 
she could devote a dollar to the support of her government, or 
her eelemosynary foundations. To avert so great a calamity as 
bankruptcy, inevitable in her then plundered and impoverished 
condition, the legislature employed several expedients and final- 
ly "the Coupon Crusher," as the act of Assembly was called, en- 
acted at a special session May 12th, 1887. That statute, so mem- 
orable in judical history, directed the county treasurer to report 
to the Commonwealth's Attorney of his town or county the 
name of each tax payer who had tendered coupons and also the 
amount of his tax bills, whilst it commanded each Common- 
wealth Attorney, under a penalty not less than one hundred 
dollars nor greater than five hundred dollars, to sue the recus- 
ant taxpayers in the Circuit Court of his county for his taxes so 
remaining unpaid. As the law was devised with the utmost le- 
gal skill it was confidently expected that it -vould do the busi- 
ness of the coupon, and the expectation was not disappointed. 
But a stormy experience awaited the Coupon Crusher, a prolong- 
ed and bitter controversjMn the Courts. The creditor, as the 
speculator became by the fact of purchase, was advised to have 
recourse to the Federal Courts, under the belief that they would 
enable him to destroy the obnoxious statutes. It was thought 
by the creditor and his legal advisers to be a club of Hercules in 



AFTER THE WAR. 37 



their hands. Accordingly a suit in equity was instituted by the 
public creditor in the Circuit Court of the United States for the 
eastern district of Virginia to enjoin Hon. Rufus A. Ayres, the 
Attorney General, Colonel Morton Marye, the Auditor of Public 
Account« and all the Commonwealth's Attorney's of the state 
from bringing those suits. The complainant's bill sets forth 
"that they were British subjects and were the owners of a hun- 
dred thousand dollars of the tax-receivable coupons of Virginia 
for which they had paid thirty thousand dollars; that they had 
sold fifty thousand dollars of that amount for fifteen thousand 
dollars or more to the tax payers of Virginia who had tendered 
the same to the proper state officers in payment of their taxes, 
but that the said officials had refused to receive the same: that 
if the officers of the state were permitted to enforce the act of 
May 12th, the complainants would be unable to sell the remain- 
ing fifty thousand of their coupons to the tax-payers of Virginia 
for amj pricp, and their entire property would be lost; and that 
the said act of May 12th 1887 was unconstitutional and void." 

The Attorney General, Hon. Rufus A. Ayers, the Attorney for 
the Commonwealth of Fauquier County, Col. John Scott, and 
the Attorney for Commonwealth of Loudoun County, Judge J. 
R. McCabe, refused obedience to the restraining order issued 
from Judge Bond's Court by instituting the prohibted suits. 
Thereupon a rule was served upon each of those officers of the 
stiteof Virginia requiring them to appear in Judge Bond's 
Court and show cause why they should not be imprisoned and 
fined for a contempt of his Court. Ou the 22nd day of Septem- 
ber, 18S7, at eleven o'clock, a. m., the Commonwealth's Attorney 
of Fauquier County appeared in the Federal Circuit Court in 
Richmond and filed a paper containing his answer to the Rule, 
as did the Hon. Attorney General, and Hon. Commonwealth's 
Attorney for Loudoun County, but not at that time, thus mak- 
ing the issue complete between the United States and them- 
selves. The Court adjudged the Attorney Genei'al to be guilty 



38 AFTER THE WAR. 



of the alleged contempt, and required him forthwith to dismiss 
the suit of Commonwealth vs Baltimore & Ohio R. R. Co., insti- 
tuted by him in the Circuit Court of the cityof Richmond, fined 
him $500.00 for his contempt of court and directed that he stand 
committed in the custody of the Marshall of the court until the 
same be paid, and to purge himself of his contempt by dismiss- 
ing the said suit last mentioned. In the other two cases sim- 
ilar judgments were rendered, except that John Scott was fined 
$10 aai costs, and J. B, McCabe was fined $100.00 and costs. The 
result was that the throe offic3rs on their non-compliance with 
the judgments of the Court were confined in the city jail of Rich- 
mond there to be kept until the judgments were complied 
with. 

The respondents in the equity suit and defendants to The 
Rule to show Cause, each petitioned the Supreme Court of the 
United States to grant them writs of habeas corpus that the 
legality of their detenti )n might be inquired into. The question 
when eliminated from these proceedings, excited an interest 
throughout the countrj', as well it might, [t was whether the 
officers of a State government ould be finod and imprisoned for 
preferring to obey the mandate of the State to the contrary or- 
der of a Federal Judge. It was indeed a question that readied 
to the bottom of a government of sovereign states. When stated 
truly the question was whether a state of the Union was to be 
degraded from the position of a sovereign statt- of the Union, 
where the constitution had placed it, to tiie condition of vassal 
to a Federal court. 

The Answer is given here of the Commonwea'th's Attorney 
for Fauquier County, presenting two grounds of justification for 
his refusal to obey the restraining order of Judge l:Jond, and for 
his preferring to obey the command of his state. 



AFTER THE WAR. 39 



ANSWER OF JOHN SCOTT, OF FAUQUIER, TO JUDGE 
BOND'S RULE TO SHOW CAUSE. 

Filed September 22ncl, 18S7. 

Honourable Hugh L. Bond, Judge of the Circuit Court of the 
United States for the Eastern District of Virginia, at the Court- 
house in Richmond : 

May it please your Honour : In compliance witli a rule issu- 
ed by your Honour against me to show cause before your Hon- 
our, at the court-house in Richmond, on the 22nd day of Septem- 
ber, 1887, at eleven o'clock a, ra. of that day, why I should not 
be attached for contempt in disregarding a certain restraining 
order of your Honour, made in the cause of Jas. P. Cooper, H. 
R. Beeton, F. J. Burt, et als. v. Morton Marye, auditor, &c., R. A. 
Ayers, attorney-general, &c., et als., on the 6th day of June, 1887, 
I appear now in your Honour's court, and submit this pap«r, 
which contains my answer to the said rule. 

Your Honour's restraining order forbade me, as common- 
wealth's attorney for the county of Fauquier, to discharge cer- 
tain duties imposed upon me, as one of the commonwealth's at- 
tornies of the state of Virginia , by a statute of the legislature 
approved by the governor. May 12th, 1887, which in its 14th sec- 
tion provides, in case of disobedience by any officer to it, a pecu- 
niary penalty not less in amount than $100, nor greater than 
$500. 

As your Honour well knows, it is a principle recognized by 
publicists of all civilized countries, as the foundation of politi- 
cal life, that a citizen or subject doing an act enjoined upon 
him by the state is covered by the panoply of the state, and is 
exempt from every degree of personal responsibility except to 
his own sovereign. 

As a state can act only through the agency of individuals, 
this immunity is necessai'y to enable it to preserve itself and 
perform its other high functions. 



40 A FTE R T H E W A K. 



An example of the application of this public law occuris in the 
history of the UnitedStates in the case of the state of New York 
against McLeod, a British subject, who was released from prison 
by the direction of Mr. Webster, secretary of state, ordering a 
nolle prosequi addressed to the attornej'-goneral of the state of 
New York. It was a command of the political power addressed 
to the judicial power, and was based on the fact that McLeod's 
action had been adopted by the British government as one per- 
formed by its authority. ("We))ster's Works.") 

The principle of exemption referred to applies with all its 
force to the states of the American Union and to their agents, 
for these states are admitted to be bodies politic in the highest 
and completest sense of the words. (Poindexter v Greenhow, 
114 "United States Reports," p. 288.) 

But it is made a condition by thit decision, to enable a de- 
fendant to avail himself of the exemption, that "It is necessary 
for him to produce a law of the state which constitutes his com- 
mission as its agent, and the warrant for his act." {lb.) 

With this condition I comply now by directing your Hon- 
our's attention to the law of Virginia, before referred to, and to 
the third section, which is in these words : "The proceeding 
shall be by motion in the name of the commonwealth, on ten 
days' notice, and shall be instituted and prosecuted by the at- 
torney for the commonwealth of the countj' or corporation in 
which the proceeding is; or, if it be instituted by direction of 
the auditor of public accounts, in the circuit court of the city of 
Richmond." 

This Act of Assembly was passed obviously with the design to 
induce the holders of tax-receivable coupons to submit them for 
identification and verification, as required by the previous Act 
of .January 14th, 1882, the condition upon which the common- 
wealth allowed her treasurers to receive the coupons for taxes. 

This law has been examined by the Supreme Court of the 
United States in Anton! v. G'eenhow, and it was decided by that 



AFTER THE WAR. 41 



final arbiter to be in accordance with the constitution (107, Uni- 
ted States Reports," p. 770.) 

The statute, to which I have referred in justification of my 
acts, being designed simply to render a previous statute effect- 
ual, must be regarded as equally constitutional with it: for the 
means are appropriate, and therefore ought to protect me from 
the censures of this court. 

But, in a very high quarter, it is contended that if the state 
law. which the agent or officer obeys, be subsequently held to 
be unconstitutional by the court trying the cause, it becomes a 
nullity, and does not protect the officer from penal consequences, 
for only those laws — such is the doctrine — which are decided to 
be constitutional, can be regai'ded by a Federal court as man- 
dates of the state ; an unconstitutional law or such as a majority 
of the court may choose to say is unconstitutional, being but 
the unauthorized act of the individuals who compose the state 
government. 

Thus is a state separated from its government, without which 
it ceases to be a state. 

To enable the learned judges to reach this eccentric conclu- 
sion, it was found necessary to define a state to be "an ideal per- 
son, intangible,invisible, immutable," and incapable of wrong or 
error. (Mr. Justice Mathews in Poindexter v. Greenhow, p- 
291.) 

Thus, by the astuteness of a lawyer, a state is transformed in- 
to a mythical personage ; along such strange lines does the judi- 
cal imagination sportively wander ! 

From what source that definition of a state of the Union was 
obtained is not known to me; but certainly it was not obtained 
from the constitution and laws of the United States, the only 
lexicon which this court will consult in a case which so deeply 
concerns the highest franchise of a sovereign state, the liberty 
of its citizens, and the obedience of its officers. 

May it please your Honour, a state of the American Union is 



•i2 AFTKll THE WAK 



not a myth, but is a living corporation. It is composed of a col- 
lection of individuals, inhabiting a defined geographical space, 
with a government and laws to organize and impart to them 
the characteristics of a body political, and which maintains 
constitutional relations with the government of the United 
States, 

Thus defined a state is tangible, visible, mutable, and is capa- 
ble of doing wrong and committing error, as the secession of 
Virginia and the other reconstructed states of South section 
will doubtless prove to so loyal a citizen as Mr. Justice 
Mathews. 

The fourth section of Article 4 of the constitution provides 
that ''the United States shall guarantee to "ijvery state of the 
Union a Republican form of government." To convince your 
Honour that this guaranty has been complied with in the case 
of Virginia, I have bu^ to refer to the readmission of that state 
into the Union after the close of the civil war with a constitu- 
tion accepted as Republican by Congress. That was an act of 
the political power ; it binds all, and this court cannot contro- 
vert or annul it. 

Your Honour will take judicial notice that the Republican 
constitution of Virginia, accepted by Congress and guaranteed 
by the United States, created a government of the people of 
Virginia, who are the state of Virginia, and that its government 
must be presumed by this court to be cimducted in accordance 
with their wishes and by their commands. Its acts are their 
acts. They bind in contemplation of lawas much as the acts of 
any deputy can bind his principal. This presumption of law, 
not the Supreme Court, in the pleiititude of despotic power, 
seeking to subordinate the states to its absolute dicta, can break 
down or set at naught. Particularly is this true in this deplor- 
able debt controversy, out of which this constitutional problem 
has arisen — a flower grown from a fetid soil — so interesting to 
every intelligent jnind in the United States. It is linowii that 



AFTKK THK WAK. 48 



over it the state of Virginia, or, to spealc with a stricter proprie- 
ty, a majority of the political body, has passionately taken ju- 
risdiction, moving its representatives as puppets and dictating 
legislation in relation to it. 

If this reasoning be correct, I conclude that whether the act 
of May 12 be considered constitutional or unconsttutional, it is 
equally the act of the state of Virginia, and that I,its command- 
ed agent officer, am not in contempt because, when placed in the 
dilemma of contrary orders, I have jnelded obedience to my nat- 
ural sovereign whose bread I eat and whose laws I have sworn 
to obey whenever I act as commonwealth's attorney. This, 
then, may be received as an established theorem : The uncon- 
stitutionality of a statute in cases like this does not render it 
less the act of the state; nor less effective in protecting the 
agent who obeys it from legal responsibility to any other au- 
thority'. 

The state which directs my official conduct, is, by the laws of 
the civilized world, accountable for it, and to the state of Vir- 
ginia I refer your Honour as the responsible party in this 
case . 

Arraign Virginia before your judgment seat; visit your pen- 
alties on her head — not on me, her agent and subaltern. 

But an )ther deduction may be drawn from this reasoning 
which it is well not to overlook in this place. 

If it be true, as a constitutional proposition, that all the acts 
of a Republican government are assumed to be the acts of the 
state, and that this ruling of the Supreme Court is, indeed, a 
blow struck at the sovereignty of the people of the states, it is a 
logical consequence that when a Federal court takes jurisdic- 
tion of a state officer it thereby assumes jurisdiction of the 
state itself. 

To hold otherwise is to evade its eleventh amendment, and 
to treat the constitution with contempt, instead of with honour 
and obedience. 



44 AFTER THE WAR. 



A single consideration will set this truth very clearly before 
your Honour. 

If, by afliicting the agents or officers of Virginia with im- 
prisonment and confiscation, the Supreme Court can succeed in 
forcing the treasurers to accept coupons without verification and 
upon simple tender, upon whom, I ask, does the consequence 
fall? Not upon the treasurers; not upon the commonwealth's 
attorneys. The consequence falls alone upon the state of Vir- 
ginia, whose treasury, by this means, will have been bankrupt- 
ed by unconstitutional action of the Supreme Court, The Su- 
preme Court needs not to be informed that behind those treasur- 
ers and these commonwealth's attorneys the state of Virginia 
stands to be affected by all the decisions against them. 

Through all these mazes and crooked paths, Virginia is the 
party whom the Supreme Court is seeking to reach ; that state 
is the game they are hunting. Although the only party in in- 
terest, Virginia is not made a party to the record, because the 
eleventh amendment, which forbids a state to be sued in a Fed- 
eral court by an individual, awkwardly stands in the way. No 
other reason can be assigned for the omission to stand her at 
the bar of the Supreme Court. Surely your Honour will allow 
that this court,because it is forbidden to entertain a suit against 
the state of Virginia, cannot therefore lay violent hands on me. 
A defect of power over the state is not a grant of power over the 
citizen. 

This defect of jurisdiction significantly suggests that w^hen 
the states fashioned the constitution they did not design to 
confer upon the Federal court that jurisdiction, and it affords 
strong support to the opinion that when the constitution de- 
clares a state legislature shall not pass any law impairing the 
obligation of contracts, it did not mean to include contracts 
made by the state itself, which, as a body political, it had the 
election to perform or not according to the dictates of its moral- 
ity. 



AFTKK TIIK WAR. 45 



If, finally, it comes to be decided — for this great question is 
yet in a state of fluctuation — that a Federal court can constitu- 
tionally step between a state of the Union and its offici-rs and 
agents, and absolve them from obedience to it, a most fatal blow 
will have been struclv at the existence of tlie states of this 
Union. 

The clouds will have begun to gather, and preparation made 
for those evil times which prognosticators foretell are ahead of 
this Republic. 

The states called this Union into existence, and from having 
been the massive pillars of a Federal system, they will have 
sunk down into the degraded vassals of the Supreme Court. 

Your Honour will be pleased to take notice that this Federal 
Union, designed and constructed by the fathers of the Republic 
for the habitation of a free people, may be destroyed as ett'ect- 
ually by a consolidation of the states as by red-handed seces- 
sion. When a stretch of judicial power is proposed which, if 
successful, must produce that result, surely, by this court, for 
that reason, it ought to be condemned as unconstitutional ; but 
if your Honour shall reject my arguments as vain and illusory, 
and shall decide that I have acted in contempt of your Honour's 
authority, I am here to abide the consequences of your Honour's 
displeasure. 

All of which is respectfulij' submitted. 

JOHN SCOTT, 
Commonwealth's Attorney for 

Fauquier County. Virginia. 

Richmond, September 22nd, 1887. 

After solemn argument by able and distinguished counsel the 
Supreme Court at the October term 1887 decided as follows, 
Mr. Justice Stanley Matthews delivering the opinion of the court 
with Mr. Justice Field concurring and Mr. Justice Harlan dis- 
senting: 

"The principal contention on the part of the petitioners is that 



46 AFTER THE WAR. 



the suit, noininaUv a<?rtinst them is, in fact and in law, a suit 
against the state of Virginia, whose officers they are, jurisdiction 
to entertain which is denied by the 11th Amendment to the Con- 
stitution, * * * * We adjudge the suit of "Cooper vs Marye," 
in which tlie injunctions were granted against the present peti- 
tioners, to be in substance and in law a suit against the Sta^e of 
Virginia. It is, therefore, within the prohibition of the 11th 
Amendment of the (Constitution. By the terms of that provis- 
ion, it is a case to which the judicial power of the United States 
does not extend. Tlie Circuit Court was without jurisdiction 
to entertain it. All the proceedings in the exercise of the juris- 
diction which it assumed are null and void. 

The orders forbidding the petitioners to bring the suits, for 
bringing which they were adjudged in contempt of itc authority, 
it had no power to make. The orders adjudging them in con- 
tempt were equally void, and their imprisonment is without the 
the authority of law. 

It is ordered, therefore, that the petitioners be discharged. 

The second grourul urged in the answer given above, was 
broadly accepted by the court and made the ground of its decision, 
but not the first position, which is as follows: 

"J;^ is a principle recognized hy publicists of all civilized, 
countries^ as the foundation of political life, that a citizen 
or subject doing an act enjoined upon him by the state is 
covered by the panoply of the state, and is exempt from 
every degree of personal responsibility except to his oum 
sovereign. ^^ 

Yet the first contention here given is as well sustained by the 

Public Law. applicable to this case, as the second position was 

sustained by the Eleventh Amendment of the constitution. That 

ground of defense is upheld in an argument printed in the Virgin- 

^-l^'^*^ ia Law Mugnwine for September 1895, page 317, and is here sub- 

1 nutted to the reader with (Mitire confidence in its soundness. 



AFTER THE WAR. 47 



Un Hppeal to tbe Hreopaous. 



There is a question of State Rights, lying deeply buried in the 
voluminous V^irginia Habeas Corpus cases — in re Ai/res, in re 
Scott, in re il/'cCo6^ (123 United States Reports, page 443) — to 
which it is desired, in this place, to invite attention, and to sug- 
gest a solution of it diti'erent from the one which, so peremp- 
torily, it has received from the Supreme Federal Court. In this 
country of independent thought and free discussion, there is re- 
served for an oppressed, or misunderstood, truth an appeal to 
the forum of opinion which is supplied with a more potential 
executive force than the utterance even of an ultimate Feder- 
al Court. 

In that jurisdiction a light is permitted to penetrate through 
any cleft or fissure, although to shine with a feeble and strug- 
gling ray. Within those precincts is a Hill of Mars, on which 
an Areopagus holds midnight sessions, administering a blind- 
fold justice, open to every suitor. To this court, thus high- 
throned, this appeal now is carried. 

In a goverament, as this republic of combined sovereign States 
poisad and balanced between extremes, it is the duty of every 
court, whenever summoned so to arbitrate, scrupulously to up- 
hold the rights of the States, counteracting and binding, by this 
policy, the deep, the impetuous, revolutionizing current steadi- 
ly running towards an antagonistic power, in proximity to the 
States and connected with them by innumerable ties. To con- 
stitute such a bulwark to the rights of the States, without 
doubt, was the highest function expected of Federal Courts 
as planned and frnraed by the architects of tlie Constitution. 

Upon the loyal performance of the brave duty, amid all oscil- 
lations and derangements, produced by accident or the times, 
depended the retention of the system's federative character, as 

a substantiality, at least as something more than the empty 



48 AFTER THE WAR. 

shell which it is the inclination of the Supreme Court to make 
it. It is doubtless more agreeable, perhaps safer and more prof- 
itable, too, to pay court to the great king, throned at the cen- 
ter, rather than to the States, whose jurisdiction has be^n ab- 
sorbed, and whose revenues have been sequestrated and dispens- 
ed by a profuse imperial hand. To a system, thus nicely ar- 
ranged, concentration is as destructive as secession. Perhaps it 
is more so, since consolidation devours the material out of which 
the Federal conglomerate was composed, whereas secession, as 
it occurred with the first Federal experiment, may be followed 
by a reconstruction, with a revived spirit and improved forms. 
As the citizen beholds headlands crumble away, and familiar 
landmarks disappear, naturally he dreads the encroaching 
wave. Like Atlas, upholding the superincumbent weight, the 
States are stationary pillars, whilst the Central Organ, their 
creature, is imbued with an incessant and powerful activity, 
whose heart-beats throb through the system. Absorption now 
is the danger point. After discharging its wrathful vials, like 
an exhausted vaporous cloud, secession has drifted off. Perhaps 
no mistake in statesmanship is so great as that which allows 
terrible objects in the past to blind the statesman to present 
dangers. Oliver Cromwell, able as he was as General and states- 
man, with an historical English dread of Armadas, continued to 
be apprehensive of the power of Spain after that great body 
had been smitten with palsy, and did not see across a gulph of 
wator. but twenty miles from Dover Cliffs, that a new power 
had risen to threaten the independence and endanger tlie peace 
of Europe. The warning, given to the adventurous mariner of 
antiquity, ought to be inscribed over the judgment seat of 
each United. States Court — in medio tatisshnas ibis — for, Scylla's 
barking waves are as terrible as Charybdis, and Charybdis as 
Scylla. 

To carry into effect the reasonable expectation of the fathers 
of the new-modeled republic, each Federal judge ought to con- 



AFTKK THE WAR. 49 



stitute himself a guardian ad litom to a State, whenever one of 
them is a party to a controversy before him, to vindicate its 
right under the Constitution, not to seize the occasion to strip it 
still farther of sovereign attributes, to pluck other royal feath- 
ers from its crest. 

The point proposed for examination will be extricated from 
the mass of facts with which it is connected, and set distinctly 
before us. The validity of the statute of May 12, 1887, passed at 
ati extra session of the Virginia Legislature, was questioned at 
the bar of the Supreme Court as authority for certain tax suits 
which had been instituted by the Attorney-General and the 
two Commonwealth's attorneys, his co-defendants in the court 
below and joint pptitioners to the Supreme Court. After learn- 
ed argument, the Supreme Court sustained the impeached stat- 
ute as a legal basis for the suits which had been adjoined, and 
discharged the ollicers of the State of Virginia from the custody 
of the marshal, on the ground that the Circuit Court for the 
Eastern District of Virginia, in which the suits had been 
brought, was without jurisdiction, because of the exemption 
contained in the eleventh amendment of the Constitution of the 
United States, thus annulling and avoiding, from the beginning 
the proceedings against the defendants. But one of the peti- 
tioners, the second named in the record, in his answer to the 
rule to show caus^', had insisted very earnestly, as one of his 
grounds, that the constitutionality of the act of May 12th was 
not necessarily involved in the judical imiuiry — thus introduc- 
ing into the controversy, with the creditors of the State of Vir- 
ginia, a very important and, as it proved, a very litigated ques- 
tion of State's Rights— because, he insisted, by an understood 
principle of public law, applicable to this case, the act of May 
12th, whether constitutional or not, was valid as an authority 
to protect the servants of Virginia, acting in obedience to her 
law, from all personal responsibility, although it might not be 
adjudged valid for other purposes. 



r>0 AFTER THE WAR. 



The case of Alexander McLeod was relied upon to sustain 
that proposition of law. McLeod vv.is a British subject, who 
had been indicted in one of the courts of the State of New York 
for an alleged murder. The British Government avowed its 
I'esponsibility for McLeod's act and demanded his release from 
imprisonment and accusation. The homicide had occurred dur- 
ing the administration of President Tyler, and Mr. Webster, in 
a position appropriate to his great talents, was the Secretary of 
State. With a noble candor, which distinguished his diplomat- 
ic career, extending through two Presidential terms, and which 
imparted dignity to his office and lustre to his character, the 
Secretary acceded to the British demands, saying: "In the 
opinion of the United States, the avowal on the part of his gov- 
ernment protected McLeod from personal responsibility ." (The 
case of the Caroline, Life of Daniel Webster, by George Ticknor 
Curtis, Vol. II, p. 68.) This recognition of the public law by the 
United States makes McLeod's case a precedent of the highest 
authority in the jurisprudence of nations, where it stands as a 
fixed rock. But is it to govern in cases like that of the agents 
or officers of the State of Virginia, acting under the compul- 
sion and authority of the act of May 12th, when they are con- 
fronted with a restraining order of a Federal Court? That is 
the further question which we have to consider in the proposi- 
tion before us. Except where the Constitution of the United 
States applies, a casus foederis, the States of the Union in re- 
spect to each other, and to the government of the United States, 
are to be considered in the light of independent sovereignties, 
bound by the obligations and protected by the law of nations. 
It is not necessarj' to cite authority to sustain this conceded 
principle of Federal law. There is nothing in the Federal char- 
ter of granted powers, which confers on any department of the 
government, which it designed to create, any authority to pun- 
ish a State officer for obeying the State lasvs. If there were 
any such jurisdiction, it would put a State in chains and, at a 



A FT K n T 1 r K W A R . 51 



single blow, destroy all States' Rights. If we would guard and 
protect the States of the Union, as (entities, and save them from 
becoming practically non-entities, we must extend to them the 
principle of the public law, enunciated in McLeod's case by 
Secretary Webster. Every reason of necessity and policy which 
entitles an external power, like Great Britian, to the applica- 
tion of the rule of law, equally applies, in the case before us, to 
the State of Virginiit. Government, except where obtained 
from a superior power as a colonial charter,is a growth of socie- 
ty. It is impossible for a community of human beings to exist 
without a government. This is true of political society, and in 
natural society there is the authority of the magister. When 
the North American States associated under a federative com- 
pact, for self-protection, each State possessed a government 
claiming and exercising the right of control over its subjects, 
and. as incidental to that great authority, and inseparable from 
it, the further right to protect them from personal responsibility 
to any other power for acts of obedience to the home govern- 
ment. The natural right of every political body to provide it- 
self with a government grows out of a necessary inherent sov- 
ereignty, and when Mr. Justice Matthews (page 505) instructs 
the country in the constitutional doctrine that the States of the 
Union are "invested with that large residuum of sovereigntj' 
which has not heen delegated to the United States," he in effect 
admits the natural authority of a State of the Union to create 
a government, an apparatus which cannot act, or even exist, 
without agents, who are sheilded from all external personal re- 
sponsibility. The right of protection is indeed the condition of 
the duty of obedience. 

When the man of affairs, instead of the idealogue, comes to 
deal with this problem, the misty atmosphere, with which met- 
aphysics invested it in a court-room, disperses. Happily for the 
cause of truth in this case, we are not without the authority of 
a very respectable precedent to sanction this position, which 
ought to command the assent of lawver and lavman. 



r^9. 



AFTER THE WAR. 



When the States of the South Section withdrew from fellow- 
ship and union with the United States to found a government in 
accord with their own ideas, the secession was effected by eacli 
State exercising an absolute jurisdiction over its citizens. It 
was the absolute power over its people which inheres in sov- 
ereignty, whether republican or nionHrchial,and nowhere in his- 
tory was that absolute principle more fully comprehended, as- 
serted or conceded than in the Southern Commonwealths of that 
period. Virginia, in that supreme hour, claimed to extend her 
sceptre over every man who had been born on her soil. He be- 
longed to her, she asserted, by a perpetual and in-.ilienable alle- 
giance. She Spoke lilce a king, "Once a subject,al ways a subject." 
She lifted up her great voice and her sons came to her from 
all climates and all localities. It was a proud moment in the 
history of that mother of statesmen ! Here is an hi&toric dec- 
laration of that principle, a defiance to the proclamation of 
President Jackson, from the pen of John Randolph of Roanoke, 
adopted with one voice by the people of Charlotte county: "The 
allegiance of the people of Virginia is due to her; to her their 
obedience is due, while to them she (uvos protection against all 
consequences of such obedience." (Home Reminiscences of Ran 
dolph, by Powhatan Bouldin.) Here also is another declara- 
tion of that organic principle of States' Rights by .losiah Quin- 
cy, another great man, Ijut born in the opposite section of the 
United States: "As it is with the people of every State, so it is 
with the people of this Commonwealth — the individuals com- 
posing this State owe to the people of Massachusetts an alle- 
giance original, inherent, native and perpetual." In the just 
meaning of the word "State," itceases to exist when it is despoiled 
of the right to protect its agents and otflcers from personal re- 
sponsibility incurred by obedience to the State. This right to 
protect is indeed the basanite and touch-stone of the retention 
of the sovereign principle. This tiuth Mr. Justice Matthews, 
and his learned brothers of the silken stole,knew as well as oth- 



AFTKU THE WAR. 53 



prs. They understood well enough that, in the language object- 
ed to, they were cutting the tap-root of the States' system. This 
is one of the deplorable consequences of intrusting political 
power to courts and judges, as they are ever seeliing to widen 
and extend their jurisdictions, which acts of aggression, piously 
they call lau\ 

The right of protection denied when men's minds are engross- 
ed in the pursuit of gain, or are sunk in repose, was not called 
in question by the United States amid the throes of the seces- 
sion period. Among the great number of Confederate prisoners, 
captured with arms in their hands and blood stainson their uni- 
forms, not one was held in a treason trial for levying war on 
the United States, or for conspiring against their government. 
Even he. the Heresiarch, thus panoplied, was allowed to walk 
forth from his casemate, untried, unquestioned, unhurt. 

Why? Surely not because a justification was conceded to the 
right of secession, but because, under our system of a Union of 
Sovereign States, each man, the ringleader and all, were cover- 
ed from personal responsibility by the admitted duty of obedi- 
ence, each man to his State. But the States, which had assum- 
ed the responsibility for the acts of their statesmen and sol- 
diers, were punished by all the stern methods of war. Here the 
world has an exposition of the law of our Union, applicable to 
this case, made by the able men who had been put in charge of 
the Government of the United States bj' a great nation girded 
with the sword, the public judgement, and the courts as well, 
consenting. It is a precedent whicli ev^en the Supreme Court of 
this sleepy period might not entirely ignore if it wei'e possible 
for a lawyer to look abroad into universality and put by his 
catechism of the court room. It was an historic era which tells 
us in language, not to be forijotten or misunderstood, what in 
American law is meant by a sovereign State. It is not an idle 
form of words, as the Supreme Court appear to consider. This 
is the memorable lesson which the political power teaches to 



54 AFTER T II K WAR. 



the judical power. But Mr. Justice Matthews rejects this inter- 
pretation of the Constitution and laws, and the appeal now is 
taken to the Areopagy of opinion. The autocratic Justice Mat 
thews thus pronounces the sentence of his absolute and final 
court: "The Government of the United States, in the enforce- 
ment of its laws, deals with all persoiis in its territorial juris- 
diction as individuals owing obedience to its authority. The 
penalties of disobedience may be visited on them without re- 
gard to the character in which they assume to act, or the nature 
of the exemption they may plead in justification. Nothing can 
be interposed between the individual and the obligation he owes 
to the Constitution and laws of the United States, which can 
shield or defend him from their just authority, and the extent 
and limits of that authority, the United States by the judicial 
power interprets and applies for itself. If, therefore, an indi- 
vidual acting under the assumed authority of a State, as one of 
its officers, and under color of its laws, comes into conflict with 
the superior authority of a valid law of the United States, he is 
stripped of his representative character, and subjected, in his 
own person, to the consequences of his individual conduct. The 
State has no power to impart to him any immunity from per- 
sonal responsibility to the supreme authority of the United 
States." 

Are we in St. Petersburg, or was this dictatorial language us- 
ed to the sovereign States by their own creature? In this ex- 
tract from its opinion, the Supreme Court chooses to ignore the 
fact that the nation of the United States is a federal nation, not 
a solid body of individuals, that each State under the Constitu- 
tion is a sovei-eignty, which the Supreme Court, in its interpre- 
tation of the Constitution, is not at liberty to impair or destroy. 
An important point of the argument is that without an irre- 
sponsibility in the persons and fortunes of its agents to the Fed- 
eral Government, or to any of its departments, the State powers 
may be destroyed, since a State must act through ihe agency of 
individuals and cannot act in any other way. 



AFTER TJIE WAR. 



Cannot a Federal judge be made to understand that any 
theory of Federal authority that would operate to accomplish 
that disastrous result would be, must be, unconstitutional? 
Surely tiie Supreme Court does not deny it to be as unconstitu- 
tional to strike the system in its entirety as to wound a particu- 
lar part of it! The Rt. Hon. Jatnes Bryce. in his survey of our 
Government, felt warranted in saying: "The States have learn- 
ed to fear the Supreme Court as an antagonist." indeed, it is a 
Constrictor- which tiiey feel may crush their system. The ap- 
prehension is well founded, and their sovereignty is the only 
practical limitation to its growing jurisdiction. If additional 
securities are not provided by the Constitution, or the Courts, it 
will happen that the States must consult the last volume of the 
Supreme Court Reports to be taught how much, or how Utile, of 
the old covenanted liberty has been left. The Supreme Court 
has become a maelstrom in whicli all ships that navigate the 
Federal sea may be drowned — a sun into whose glowing fur- 
nace, by an irresistible attraction, star, comet, system — all — will 
be precipitated. But tiie authority for the imperious language 
employed by Mr. Justice Matthews, quoted above, is O.^born r. 
Bank of the United States, the Ohio case, as recognized by judges 
and lawyers, whicli is found in 9th of Wheaton's United States 
Reports, page 738; and I cannot, in justice to the cause, which I 
presume still to champion, forbear its mention here. It has 
been a landmark in the profession, and idol to which men have 
bowed, but, happily, it can no longer, I think, be regarded in 
that light. By a statute of Ohio a tax of $500 was imposed on 
each bank of the United States doing business within the State, 
and by the authority of a warrant,or execution, from Osborn,the 
Auditor, as the statute provides. Harper entered the bank at 
Chillicothe and carried off coin and notes sutflcient to satisfy 
Ohio's demand, and delivered the money to Curry, the Treasur- 
er, who placed it to the credit of the State on the treasury books 
yet kept it in a trunk separate from other monies. 



56 AFTER THE WAR. 



This particular fund, with the rest of the treasar3''s contents, 
was delivered to Sullivan, Curry's successor, who receipted for it 
as Treasurer, "not otherwise," but it was retained in the trunk 
where Curry had placed it. 

On the 4th day of September, 1819, a bill for an injunction 
was exhibited in the Circuit Court of the United States for Ohio 
against Osborn and Harper, and the injunction was served on 
Harper whilst he was on his way to Columbus, and on Osborn 
before Harper reached Columbus. 

In September, 1820, a supplemental and amended bill was fil- 
ed making Osborn, Harper, Curry and Sullivan parties, On 
that bill the cause proceeded to a decree against the defendants, 
and was appealed to the Supreme Court, and heard at the Feb- 
ruary term, 1824. The Judges treat as undeniable law, and 
founded their reasoning upon it, that a principal in a trespass 
is jointly liable with the agent who commits it, and that it is 
error if he be not joined as a party to the suit. 

The court say: "The fact is made out in the bill that Osborn 
employed Harper to do an illegal act, and that lie is jointly lia- 
ble with the agent who commits it, is as well settled as any 
principle of law whatever." (Page 837). This responsibility at- 
taching to an individual trespasser, who acts through an agent, 
the court applies to a State of the Union. "The direct interest 
of the State in the suit," the court say, "is admitted, and, had it 
been in the power of the bank to have made the State a party, 
perhaps no decree could have been pronounced in the cause, un- 
til the State was before the court." "(Page 846-7). According to 
this exposition, in absence of the eleventh amendment of tliu 
Constitution of the United States, the respondents to the 
amended and supplemental bill would have been Osborn, Har- 
per, Curry, Sullivan, and the State of Ohio, represented by its 
Governor and Attorney General, according to the precedent of 
Chisholmv. Georgia, 2 DaUasiW. In this condition of parties 
by the public law, as stated by secretary Webster, the bill as 



A FT K K Til I-: \V A R. 57 



soon as the relation of the parties was discovered by tlie Court, 
would have been dismissed as to the respondents, but retained 
against Ohio; for already the Court had said they had jurisdic- 
tion to administer any law connected with the case (page 820- 
23), and, of course, the public law, a part of all civilized codes. 

Sustained b.y these authorities, we stand now on the hard 
ground of this proposition : Before the adoption of the eleventh 
amendment to the Constitution, an agent of the State could not 
have been held to a personal responsibility by a Federal court, 
because the State, the responsible party, might be produced be- 
fore the court as a respondent. 

If, after the adoption of that amendment, the agent is held 
responsible, it must be because the amendment creates the re- 
sponsibility. H«re, in its puissance, is the eleventli amend- 
ment, and let it speak for itself: "The judicial power of the 
United States shall not be construed to extend to any suit in 
law or equity commenced or prosecuted against one of the Uni- 
ted States by citizens of another State or by citizens or subjects 
any foreign State." This amendment confers no power,it trans- 
fers no res))onsibility, it is wholly prohibitory. It interdicts, in 
particular cases, suits against one of the United States, and that 
is the whole scope of the amendment. By what authority, then 
a reader may inquire, is the agent of a State suable, after the 
offending actor has been guaranteed and protected by an inter- 
dict of the Constitution? If such responsibility, which did not 
exist before the adoption of the eleventh amendment, exists af- 
terwards, it must be because of the words of the amendment, or 
some proper deduction from them, which we see is not the case. 
If such responsibility be transferred to the agent, from the exon- 
erated principal, the amendment is made craftily to undo its 
work. What did Ohio gain, it may be asked, or what did the 
bank lose, by the eleventh amendment? The court compelled 
the State oflficer (Sullivan) to enter the treasure-house of Ohio — 
it was an act of violence — and take the monev out of the trunk 



58 AFTER THR WAR. 



where Curry had placed it, and hand it back to the bank, the 
very thing that must liave been done it tlie eleventh amend- 
ment had not been appended to the Constitution. 

What a nose of wax has not the Constitution become in the 
dextrous hands of the Supreme Court! The object of the eleventh 
amendment was to vindicate the sovereign principle, attach- 
ed to each State, which had been impairetl by the Constitution 
as at first made, as we learn from Chisfiolrn r. Georgia. 

The principle of State sovereignty was made the sub-base of 
the Constitution, and it lies there still, as does, in Indian seas, 
amid all convulsions, the coral foundation of their islands and 
continents. 

The judge who rendered the opinion of the court felt the bur- 
den he was assuming. He said : "It was not in the power of 
the bank to have made the State a party, and the very difficult 
question is to be decided whether in such a case the court may act 
oyi the agents of the State and the property in their hands." But 
thedifflculty, by a masterful effort was overcome, the pioneers 
smoothed and leveled the way for succeeding judges and courts, 
and now, instead of the hesitating, apologetic language of the 
pioneer jadgs, the States are bearded by the autocratic dictum 
of Mr. Justice Matthews. So power grows ! The amendment, 
when pi'operly construed, covers with its aegis as well principal 
as agent: for in every human transaction, by every code, the 
agent is but the alter ego of the principal. In law they are the 
same man. It is not necessary to say more on this point. To 
punish or compel the agent of a released principal, it is clear 
enough now, was a palpable violation of the Constitution. 

It was decided alst) in Oshorn v. The Bank, that a State could 
not be regarded as a party to the suit unless it was so named 
in the record, the interest of Ohio in the case being conceded in 
the court's opinion. With a purged vision the Supreme Court 
now say in the habeas corpus cases: "To secure the manifest pur- 
poses of the Constitutional exemption guaranteed by the elev- 



AFTER THE WAR. 59 



enth aniendinead,ro(iuirGS that it should bo interpreted, nut liter- 
ally and too narrowly, but fairly, and with such breadth and 
largeness as effectually to accomplish the substance of its pur- 
pose. In this spirit it must be held to cover not only suits 
brought against the State by name, but those also against its 
agents, officers, and representatives, where the State, though not 
named as sneh, is nevertheless, the only real party against which 
alone in fact the judgement or decree effecctively operates." 
But in the ()hi(^ case a very serious obstacle was interposed. 
Such a conclusion would have ousted the Supreme Court of 
jurisdiction in the cause, as in the habeas corpus cases, a conclu- 
sion to which, in the inflanied condition of parties, that Court, by 
any process of reasoning, did not intend to be conducted. Party 
interests were paramount with the judges of the Supreme Court 
at that period of the nation's history, as they have been sup- 
posed to be since. If the Ohio case is to stand as law, and also 
the autocratic ju dgnu'ir t of Mr. Justice Matthews, the result we 
have reached is that the Constitution has turned the Judges out 
of a jurisdiction by the front door, but, with false keys, they 
have entered again by the back door. 

John Scott of Fax quikr. 
U'arrenton, Va. 

TESTIMONIALS. 

The State of Virginia, in her nobleness, as well as to reward 
the loyal obedience shown to her high, and superior, author 
ity, and, perhaps, to hold it up to other times, awarded to each of 
her officers, engaged in that important business, a Testimonial 
of her sovereign approbation. To heighten the honour, and ren- 
der the gifts more rich, those evidences of the State's apprecia- 
tion, were sent, to the Recipients, through the gallant and dis- 
tinguished Confederate General, His Excellency Governor 
Fitzhugh Lee. 



Xote to ixKje 59. — 

WliPii the two grounds, taken in the foregoing answer of the 
(.'omnion weal til's Attorney of Fauquier County, are analyzed, 
thev are seen to be rooted both in the bed-rock of State sover- 
eignty, and though coming from ditlereut directions, yet they 
concur in the protection of the States' agent from every species 
and degree of extei-nal responsibilty. By the first the agent is 
shielded by the sovereignty of the States as respected and hon- 
oured by international law, enunciated by secretery Webster in 
McLeorl's case [ante]. In the second ground the irresponsibility 
of the State's agent, or officer, is deduced from the Eleventh 
Amendment of the Constitution, according to the principles of 
Law. Let it be understood that the Eleventh Amendment only 
re.ttores to every State of the Union the high and sovereign priv- 
ilege of exemption from the suit of an individual of which the 
Constitution, as first written, through inadvertence, or mistake, 
had deprived a State. In the first go-otl' of the new government 
that departure from the principle of the Constitution produced 
an angry and hostile defiance of the authority of a Federal 
Court, by the State of Georgia. The whole country saw the 
fatal error that had been committed in the structure of the 
Union between those sovereignties and the Eleventh amend- 
ment, through the fortunate power of amendment, was added 
to the constitution. Now, by the wise decision in the Habeas 
Corpus cases, the State's agent, no more than the State itself, 
under that part of the Constitution, is suable by an individual, 
or by a collection of individuals, such as proposed to degrade 
and bankrupt the state of Virginia by the hocus poc us ol suing 
the State's agent when the Constitution forbade* them to sue 
the State itself. The Eleventh Amendment, with its instructive 
history, has an important bearing on the unending controversy, 
whetherthis unexampled American system is a grand congrega- 
tion of sovereign States, banded in an experiment in government 
or a mere huddle of federal vassals, whose precarious fate is de- 
cided in a quadrennial election. Sovereignty in the Union is an 
indivisible entity, the "residuum" being left with the States, 
whilst the other part is delegated, or entrusted, to a Central 
Agent, under the instructions of a written Constitution, until 
the Principal chooses to revoke the Agency. The system then 
does not violently execute the judgment of Solomon! When 
will the American politician, and the Supreme Court, learn that 
they eternize the Union when the.y agree to construe the Consti-' 
tution in accordance with its fundamental principle, and not 
keep the States alarmed lest they be destroj-ed by a huge Octo- 
pod at Washington. 



states are great and powerful enough to lead the nations in the 
noble enterprize of a common delivery from slavery to gold. In 
the power "to regulate commerce with foreign nations" the con- 
stitution has forged the weapon with which it has armed Con- 
gress for the conflict. Taught by a painful experience the Con- 
stitution-makers were aware that it might become as necessary 
to the interests and rights of the nation they were forming, to 
be able to wage a bloodless commercial war, as to maintain hos- 
tilities with the sword. "]iTngland is a creditor nation and should 
require payments in gold," as Mr. Gladstone, in the words of a 
mon?y-lender, has been pleased to announce as a becoming poli- 
cy in Parliament. She is represented here as the Shylock of 
this period of the world and should be dealt with as the grind- 
ing usurer, and be chosen as the nation upon wiiich the experi- 
ment is to be tried and where the example would prove most ef- 
fective. The United States may well revive, as becoming her 
character and position, the superb maxim of Rome, debzlare su- 
perbos, and compel that old and haughty nation to abandon the 
maxims and practices of a money-changer. England demone- 
tizes silver, and induces an unauthorized and disobedient Amer- 
ican Cbngress to imitate her example,that her interest and debts 
may be paid in appreciating gold — the crooked wisdom of the 
usurer. It is time for the United States to employ all the reser- 
ved powBrs of their constitution to break this fetter of gold. If 
Congress, in the plentitude of its authority, were to authorize 
the President to prohibit, in the whole or in part, British trade 
with the ports and harbors of the United States, unless the Brit- 
ish government would agree to remonetize silver, within a stip- 
ulated period, that concession, so important to the producing 
classes of the Union speedily would be made. The immensity of 
British trade with the United States was well stated by Presi- 
dent Harrison in the letter accepting a nomination for a second 
term. Its bulk and value expressed the dependence of the Uni- 
ted Kingdom u[)on tlint interchange of products and showed 



3 

that it was as absolute as that of a nursing infant. The Vene- 
zulean scare exposed a truth that with propriety may be alluded 
to in this connexion. It revealed the prudent solicitude of Lord 
Salisbury to preserve unimpaired the cordial relations of the 
Queen's government with the republic of North America. The 
British are a brave and martial people, but are also a polity peo- L-i 
pie, and no one, probably, is better informed of this than the in- 
telligent Premier. Contrast the amiable, good-natured, and ac- 
quiescing negotiation with Mr. Cleveland, who w^as so entirely a 
volunteer in the boundary dispute of British Guiana, with the 
menacing attitude when the young Emperor of Germany pro- 
posed to interfere with British pretensions in South Africa! 
AVith ruffled plumes Eugland then showed that she was still 
the gamecock of Europe, To this readiness for war, and genius 
for the affairs of peace, that historical nation owes its suprema- 
cy in westera Europe. It shows another thing that its primary 
interests do not lie in America, but on the Dardenelles and in 
the further East. With her hand on her sword she negotiates 
in the Mediteranean and the Balcic, but she can afford to be 
agreeable with the West. The jurisdiction "to regulate commerce 
with foreign nations," though expressed in general, perhaps in- 
definite, terms, has yet a defined historical meaning. The Arti- 
cles of Confederation, or first Constitution of the United States, 
contained no such power as that now conceded bj'^ the United 
States, to Congress, and the want of it enfeebled the Government 
so far as to frustrate action when it sought to protect the foreign 
commerce of the country. But the States have received a com- 
pensation for their losses, thence resulting in the vigorous 
amended Federal Agent to which attention is now directed. 

As s)on as the independence of the colonies was acknowledged 
by the home government the war of arms was succeeded by a 
war of imposts, in intention by the British government,in effect 
by the rest of Europe. Adam Smith but a few years before had 
published "The Wealth of Nations," instructing government that 



freedom in commerce was necessary to its prosperity. The great 
work had been given to mankind two montlis before Jefferson 
read his Declaration of Independence to Congress, so nearly co- 
temporaneous were those productions. In truth, the two men, 
one living in the old world, bj^ the boisterous Garman ocean, the 
other in the new world as a philosopher, but announced parts of 
the same valuable truth — one the freedom of man's property', 
the other the freedom of man's person. Adam Smith's book 
was eagerly read in America and made the sub-base of both con- 
stitutions, but its radiant light more slowly was diffused among 
the statesmen of the" continent, for there trade was still hob- 
bled and hampered by hindrances and prohibition3--so difficult 
is it to pluck up a rooted error. It was by such causes that the 
oil industry of New England was destroyed, whilst they render- 
ed unproductive to the planters the rice and indigo of the Caro- 
linas, and the tobacco of Virginia and Maryland. The custom- 
house, as part of the taxing apparatus, was withheld by the 
States. Stretched along the seaboard those States, but Virginia 
particularly, attempted retaliatory measures, but with disas- 
trous results. The exclusions and disadvantages enacted by 
State statutes drove foreign shippers and cargoes to neighbor- 
ing harbors, where they were received upon more hospitable 
terms. To Washington, although in private life, all grievenances 
were carried, and his correspondence is the source of much in- 
formation relative to the concerns of that period. To the Mar- 
quis de La Fayette, the confldant of his opinions,apprehensions 
and hopes, Washington thus paints the dreary picture: "When- 
ever we have an efficient government established, that govern- 
ment will surely impose letaliatory restrictions on the trade of 
<jreat Britan. At present, or under our present form of Confed- 
ration, it would be idle to think of making commercial retaliat- 
ions upon our part. One Statepasses a law prohibitory of some 
article, another State opens wide the avenue for its admission. 
It is in vain to hope for a remedy for these and innumerable 



other evils until a general ly^overnment is established." Upon 
this part of the correspondence a recent book makes this com 
mentary: "As planter Washington argued, so argued every 
farmer and planter in the Union. There was a diapason of 
voices that went up from every neighborhood in favor of con- 
ferring upon Congress, in some form, or under some condi- 
tions , the power of commercial retaliation, and when men saw 
that power placed in a new Consitution it went further to rec- 
oncile them to it than all other causes so strong is the desire of 
gain in an un prosperous people." 

There can be then no doubt as to the meaning of those words,nor of 
the intention of the men who caused them to be inserted in the 
Constitution. It is an authority vested in Congress to enable it 
to wage a commercial war and by that means to remedy wrongs 
remediable in no other way. The only doubt that can trouble 
the nation at this time, as to that business, is whether the new 
Congress and the new President will adopt the stringent meas- 
ure for which Washington sighed. "The creditor nation," bend- 
ing to the control of a cruel gold faction, has been willing to 
canfiscate agricultural and other products to the single gold 
standard and in its effects to pauperize the colonies and depen- 
dencies of every region and race, and the question will soon be 
propounded whether commerce with America also is to be heap- 
ed upon the same sacrificial altar. 

When the new President, representing one party, but speak- 
ing for all parties, shall present the demand of the United States 
with the penalty, in cases of refusal, lying in the background, 
there is not a reasonable doubt but that Salisbury with alacrity 
will again consent. If any adverse influence prevail with him 
another ministry, with the accomplished Arthur James Balfour 
as its Cheif, will be installed. To every understanding, not 
blinded to the signs of the times, it is manifest that the trader 
is resolved to have both the yellow and the white metals in his 
multifarious and multitudinous transactions. When he calls 



6 

for both metals why should he be denied? Silver and gold sup- 
plement each other and have been us<dina relation of value 
from remotest antiquity. With as much reason might some oth- 
er despot interdict the use of both eyes because a man can get 
along with one eye. The law of the Creator is not more clearly 
visible in the one case than in the other. President McKinley 
would not enter an untrodden path were he to grapple very 
soon with the British power. No act of any administration 
could be so popular as that. It is not ancient history that the 
United States coerced Germany, notwithstanding her invinci- 
ble legions, into an obseivanceof comity, through the exercise 
of their commercial jurisdiction. During the administration of 
Benjamin Harrison American pork was interdicted the German 
market under the pretext, it was thought, of its unsoundness. 
An act was adopted by (.ongress requiring an examination of all 
meats intended for foreign markets and a certificate of sound- 
ness supplied to the exporter. The President in addition was 
empowered, if the offensive laws were not repealed, to forbid 
the ports of the United States to German commerce or to select- 
ed articles of it. The efiicacy of that legislation was soon verifi- 
ed. The restrictions, like cobwebs, were all blown away and 
the American hog grunting and sweating, marched in with all 
the honors of war. So it would be with persecuted silver. What 
the nation wants, in this crisis, is a vigorous man at the helm, 
and it would be well if he were a hickory Jackson. The over- 
lordship of British power in our monetary concerns must be 
shaken off. The United States do not intend to sink back, into a 
dependency and wear again a colonial yoke under the guise of 
the reign of a Money Power. England may submit to such a 
vassalage, America never will. Wm. McKinley must be the 
President, not Morgan, Drexel tt Company. He must redeem 
his personal pledge, and the pledges of his party, to remonetize 
silver. It will not do for him to plead his inability to obtain the 
consent of foreign nations when all the people see the weapons of 



coercion which the constitution places In the hands of a Presi- 
dent, who has in him the stern stuff of a soldier. The nation 
has endured this travail lonj?, but at last the liour and the 
man have come. 

FROM TIIETKL'E IXDKX. 

MR. CARLISLE'S FIFTY CENT DOLLAR 



Mr, Editor: — Mr. Secretary Carlisle asserts, in his able 
speeches on the currency : If silver were coined at the ratio of 
16 to 1 that such coinage would fill the treasury with fifty cent 
dollars, because he avers, in the market of the precious metals, 
where the relative value of gold and silver is fixed, the silver 
metal bears to gold a ratio of 32 to 1. In consequence, that these 
depreciated, or "dishonest" dollars, as he calls them, when made 
legal tender, and employed in the discharge of debts, would de- 
fraud each creditor of half his dues. But tliat result could not 
follow, it were enough to say, because such a payment would 
grossly impair the obligation of the contract between the par- 
ties, for the constitution declares Article 1, Section 10, ">jo State 
shall pa s^ airy I no impairing the obligation of Contracts,^' an in- 
capicity which attaches to Congress equally as to a state. This 
incapacity in Congress to pass any law imparing the obligation 
of contracts is created by the character of the federal instrument 
which provides a government of granted or ennnierated jjoicers. 
so that if we discover that authority to do a particular thing is 
not to be found in the constitution, fairly construed, the neces- 
sary conclusion is that the power has been denied. That was an 
important, perhaps a vital, part of the work, for protection to 
the sacredness of contracts was a base upon which those Con- 
script Fathers designed to found civil society in the LTnited 
States. Tile quoted language was a proclamation from those 
sovereign democratic communities, in their high federative ca- 



H 

pacity, of a moral law, as well as the enactment of a convenient 
constitutional restraint. 

The legislator knows, if he would build strongly, that he must 
build on the foundation of rectitude, a principle in nature — 
God's law — which this clause of the constitution reveals to have 
presided at that Council of The Fathers. If this silent, but 
potential, negative, which its framers left behind them, is to be 
taken out of the constitution, or reduced to a nullity by the cun- 
ning of lawyer and judge, let it be done bj' a declaration as plain 
and positive as that which binds a state of the Union, for if done 
by the Supreme Court, it would leave the States still in fetters 
whilst the miscliievous project would introduce irresponsible 
Congress into a new and alarming jurisdiction. It would be to 
let the treacherous ocean to neiv^ beds. No good reason can be 
suggested why so delicate a power should be withheld from a 
state, yet be entrusted to Congress, and such appears to have 
been the conclusion of the great men who fabricated the consti- 
tution. Were the important question, agitated here,allowed to be 
determined on the words and meaning of the Great Treaty 
among the States, there would be little room for doubt, for this 
part of the fundamental law is a plain piece of work. But the 
Supreme Court, at once autocrat and oracle, has spoken on the 
important question and it is necessary to attend to its utter- 
ances, [n Julliard against Greenman the opinion of the Court, 
the whole Court, except Mr. Justice Field, contains these un- 
pleasant words: "Under the power to coin money and regulate 
its value. Congress may issue coins of the same denominations 
as those already current by law, but of less intrinsic value than 
those by reason of containing a less weight of the precious met- 
als and thereby enable debtors to discharge their debts by the 
payment of coins of less real value." The case may be found in 
110 U. S. Re()orts 421. The Supreme Court removes all difficul- 
ties and confers on Congress, the jurisdiction with the free hand 
of a proprietor. Tliis power, thus generously liestowed is de- 



9 

rived, as we see, from tlie power "to coin money," [good money 
of course,] for the transaction of business. But how derived? 
As an incident, the authority to do ji wrong and pernicious act 
from an authority to do a rightful and beneficent act. Is evil 
then the legitimate offspring of good, and has the Creator thus 
organized the moral law? We know how the fathers of the Con- 
stitution have dealt with the subject of the repudiation of con- 
tracts. We know too .how the inner conscience detests and con- 
demns the act, and we demand some higher authority than 
Supreme Court Judges to legitimate and sanction this new juris- 
diction of fraud. Another school of Latitudinarians has sprung 
into existence — "men not restrained by settled limits of opin- 
ions." That sect has assaulted the constitution as once it assail- 
ed the Scriptures. It is hoped that some compassionate and 
friendly overseeing power will save the constitution from the 
vivisection and arrest the Supreme Court judges who have be- 
come a dreaded corps of sappers and miners. To limit the term 
of offlce of the court is the only etiicacious mode of correcting the 
evil. The Judges will tlien become responsible for what they have 
said and done. We don't want an autocrat in our republic. He 
does not fit into the s^'stem. But, if we are to have autocra- 
ic power, every lover of his country, and friend of virtue, will 
pray that it may not be lodged in the bench of judges so bitter- 
ly denounced by Senator Vest for annulling the act of Congress 
which taxed the incomes of the moneycrats, or plutocrats, if the 
Greek word is better liked. That scandalous decision it is hop- 
ed, will not bj! forgotten when the new Congress assembles. 

The Free Coinage of Silver Party have not raised a standard 
of fraud for dishonest debtr^rs to fiock under. They do not wish 
to pay debts with fifty cent dollars. But they do earnestly de- 
sire to liave the constitution delivered from such a perverted 
construction as prevailed in Julliard against Greenmanand that 
the nation be allowed to retain the liigh morality of the consti- 
tution and not have thrust upon society tlie low morality of the 



10 

Supreme Court. They know if the victory be given them, tliat 
the free coinage of silver will raise the price of the white metal 
to the former standard of 16 to 1, for it is a part of the free coin- 
age monetary system tiiat goverment should create at each 
mint an unlimited demand for all the silver bullion and all the 
gold bullion that is offered, at the relative value of 16 to 1. Our 
own experience has shown that even the gold discoveries of Cal- 
ifornia, that wonderful event, did not at our jpwn mints disturb- 
this steady balance. Aplenty of metal money would result 
from the free coinage of silver which would injure no man, un- 
less the usurer. 

The productions of the shop, the manufacture, the mine, the 
farm and of every other honest em ploj'^ment, would rise in value, 
the hire again would become worthy of the laboror and pros- 
perity would revisit the homes of the people, which is the final 
object of government. 

.John Scott of Fauquier. 

Warrenton Va., August 6, 1896. 

APPLICATION OF PRECEDENT TO THE WRITTEN LAW. 



from the true index. 



Editor of the True Index: — It'is a serious affair when a govern- 
ment miscarries in one of the main purposes of its foundation 
and the language and meaning of a written constitution are set 
at naught by the insolent power of construction. A hasty look 
at Julliard against Greenman, 110 United States Reports, page 
421, has revealed to the reader in what manner the Supreme 
Court, the Court of the constitution, has produced such a result. 
That ben^h of Judges, with the constitution open before them, 
decided that the authority "to coin money" empowers Congress 
to coin depreciated dollars with which previously contracted 
debts might be liquidated, and in consequence, the creditor de- 



11 

frauded of part of his property. Never before has knavery been 
taken as a ward of the court, and never before so great violence 
done to human language ! Was it ever known before that au- 
thority to do a right tiling was to be used to authorize a wrong- 
thing to be done? Yet there is no appeal from that decision, 
unanimous, if the dissent of one member of the Court be except- 
ed. Not only is there no redress for the wrong inflicted in that 
case but the decision, by the law of precedent, stands as an au- 
thority for later Judges to follow. The reader sees now, very 
plainly, how the Federal Judge by the autocratic power of con- 
struction, helped along by the hiw of precedent, becomes legis- 
lator and even constitution-maker. The decision of the Supreme 
Court, in Julliard against Greenman, is now the constitution, 
though the men who made it turn in their graves. The reader 
must awake to new times ! The constitution, as written and 
and adopted, though still in theory the Supreme law, on that 
point henceforth takes a back seat, or ''retires from active ser- 
vice," as the pensioned Federal Judge might express it. A Su- 
preme Court lawyer, if consulted, might say : "As to the power 
of Congress to coin depreciated money to pay debts withal the 
constitution has been construed and the construction of the Judges 
supercedes the original instrument." That is what precedent 
and construction, those active co-operators and joint conspira- 
tors in wrong, have done for the constitution. It is not easy to 
see what possible call, with two such forces at command, the 
Supreme Court can have for the recreating power of amend- 
ment. It appears that already the Supreme Court is master of 
the entire sy«tem, the States only their vassals. 

The law of precedent in the American Courts was derived from 
England, the realm of John Bull, and is the God of his idola- 
trj'. John Bull is persuaded that all wisdom dweUeth in the 
past, and that what has not been done or said before is not 
worthy to be said or done at all. 
It is quite useless to argue that point with John Bull. He says 



12 

he was never wrong in his life, and before he will surrender his 
opinions, he will pnt his grea^ fleet in commission and call to 
the field his invincible army of volunteers. That great landed 
proprietor, it is known, staj'S a great deal at home and hence 
moves much within the circle of his own ideas. Another of 
John Bull's notions is that an English Judge never errs, and his 
American brother too has planted himself on that deepset rock. 
But a Free coinage of silver democrat, from a supposed lunatic 
condition, is to be treated with some indulgence. Taking ad- 
vantage of that gracious privilege, he would en-juire into thfi 
origin of precedent in courts of justice and the propriety of ex- 
tending its application to cases turning upon the written luw. 
It is known, even to the laity, that, in the beginning, in the ru- 
dimentary condition of Society, from which it emerged, the com- 
mon law was but a customary law of the King's realm. The au- 
thority, or rule of conduct, which the people time out of mind 
had been obeying as the law was the law administered in the 
Courts. Particular customs are excepted. The Customarj' or 
Common Law, was to besought in the treaties of learned men 
but the abundant and perennial source of that jurisprudence 
was the decisions of the courts and the opinions of Judges. It 
is obvious that such a legal system must rest upon the law of 
precedent, the rule of slnre decisis. But to take that rule, one 
Judge invoking another Judge, and with no other authority for 
the law to look to, out of the common law courts and apply it to 
a class of cases where there is an ordinance, or statute, to ap- 
peal to, is to do an absurd and contradictory thing. What ob- 
viously is the function of Judges where there is a written law? 
To apply the law as written to cases as they arise, for there is 
the law in the very words of the Supreme power. By what au- 
thority does the Judge go anywhere else for the law it may be 
asked? If he consults another decision in another case, made 
by another Judge, he may find the law wrongly decided. No! 
he must refer to the law as written, that alone is his guide. He 



13 

must not consult an oracle no hij?her than himself. The judg 
nient of a court where there is a written law, is naturally only 
its sentence, and is confined in its operation to that case. Thus 
are we rid of the slavery of precedent! By it a wise judge may 
be compelled to go wrong, because some blockhead has gone 
wrong before him. 

One of the departures of tlie French revolution from the beat- 
en track of old Europe and which greatly increased the bitter- 
ness of English hostility, [see Burke's indignant invectives], 
was the unceremonious manner in which the law of precedent 
was treated by the French lawyers. The Code Napoleon directs 
each Judge to Interpret the law for himself. I speak withdiiB- 
dence for I have not read that monument of legal wisdom, but, 
if rightly quoted, the example illustrates the point before us. 

In this insurrection of the oppressed masses against the gov- 
ernment of the Money-power, it is hoped that, in the General 
Redress of Greivances, the Constitution, impressed with the 
seals of the Fathers, may be rescued from the beaks and talons 
of the Supreme Court .Judges. I remember to have heard an 
able member of our bar, FTon Charles T. Green, with more em- 
phasis than piety, express the wish that all the lieported cases 
might be burned. 

.JoHx Scott, 
of Fauquier. 



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